Review Transfer 2008-0063 (26. 2008.06)

Where the payment deadline is too short, the effect of a duty payment notice shall be effective.

Although the Plaintiff asserts that the payment deadline was set at two days after the notice was too short and thus lacks rationality, it is stipulated that the payment deadline shall be set at the expiration of 14 days from the date when the notice was issued or within 14 days from the date when the notice was delivered, and therefore there is no hindrance to the performance of tax liability.

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant confirmed that the disposition imposing capital gains tax against Han on March 3, 2008 is null and void.

1. Details of the disposition;

A. On December 28, 2005, HanA transferred to ParkCC a building with 340-11 square meters and 268.4 square meters of land (hereinafter “the instant real estate”) at Dong, Dongjak-gu, Seoul on December 28, 2005, and reported and paid KRW 25,464,420 of the transfer income tax by calculating the transfer value on February 28, 2006 as 720,000,000, which is the actual transaction price, and the transfer value on February 28, 2006 as 591,970,840, which is converted into the standard market price.

B. The instant real estate was owned by the Plaintiff before July 18, 2003, and the actual acquisition price of Han was KRW 355,00,000. The Defendant investigated and confirmed the actual acquisition price of Han’s transfer income tax return, etc. at the time of the investigation, and notified Han of taxation imposing capital gains tax of KRW 115,304,880 (including penalty tax of unfaithful return, KRW 9,050,619, and penalty tax of KRW 15,748,07,07) to Han by applying the said tax return, etc., and then sent a tax notice on January 31, 2008 (hereinafter “the initial disposition”).

C. However, in order to eliminate the controversy, the Defendant issued a disposition imposing capital gains tax of KRW 116,98,300 (including penalty tax of unfaithful filing, penalty tax of KRW 9,050,619, and penalty tax of KRW 17,431,493) to Han on March 3, 2008 (hereinafter “instant disposition”).

D. KoreaA died on April 30, 2008, and the Plaintiff inherited it solely.

[Ground of recognition] The descriptions of Gap evidence Nos. 1, 2, Eul evidence Nos. 1 and 2 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) On January 15, 2008, the Defendant rendered a decision to revoke the initial disposition, but did not notify HanA, and omitted the notice of pre-announcement of taxation and the notice of procedure for filing a request for pre-assessment of taxation, and even did not serve a notice of tax payment, which serves as the basis for the instant disposition.

(2) The Defendant, while taking the instant disposition on March 3, 2008, set the time limit for payment of capital gains tax as March 5, 2008, which was later two days after the date of the instant disposition, but it is physically impossible to pay a large amount of money exceeding KRW 100 million in preparation for two days.

(3) Because of these defects, the instant disposition is invalid in an unlawful manner.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Notice of the decision of revocation of the initial disposition

If an administrative agency determines that there exists a defect in the establishment of the initial disposition, it may ex officio revoke the previous disposition, and in particular, the revocation of the disposition is not an infringement of the rights and interests of the parties, and thus no special procedure is required. According to Article 1124 of the Administrative Procedures Act, when an administrative agency disposes of the disposition, it shall be done in writing, except as otherwise provided in other Acts and subordinate statutes, but may be done orally or by other methods if it requires prompt or minor matters. The circumstances acknowledged by the facts and evidence mentioned above are as follows. On January 15, 2008, Korea-U.S. government visited the request for revocation of the previous disposition to the effect that it was not notified of the advance notice of taxation, and the defendant asserted that the initial disposition was not effective, and that the initial disposition was revoked, even if there were no concerns that the initial disposition would affect the validity of the previous disposition, and thus, the previous disposition was revoked immediately by accepting the opinion of the competent administrative agency, and thus, the defendant did not have any prior notice of the revocation of the previous disposition.

(2) Whether advance notice of taxation and request for pre-assessment review are omitted

According to the purport of the evidence Nos. 2-2 through 5 and the whole arguments, the defendant, on January 17, 2008, notified the Korea-AA to the effect that capital gains tax of 116,282,35 won should be imposed, and the plaintiff, on January 21, 2008, received the notice of pre-announcement of taxation on behalf of Korea-AA and received the notice of taxation on May 3, 2008 from the National Tax Service on May 18, 2008, which imposed capital gains tax on May 18, 2008, and thus, it should be exempted from additional tax of 25 million won as a result of the request for pre-assessment of taxation." Thus, the plaintiff did not have any defect in notification as alleged by the plaintiff.

(3) Whether a tax notice has been served

According to the purport of Nos. 2-1, 3 and the whole pleadings, the defendant set the deadline for payment to South Korea on March 3, 2008 and issued the instant disposition on March 5, 2008, and it can be recognized that the notice containing the purport thereof was delivered to Han on March 4, 2008. Thus, there was no defect in the procedure for the delivery of a tax notice.

(4) Whether it is unlawful to determine the payment deadline later than two days after the date of notice

Inasmuch as the Defendant’s setting of the time limit for payment two days at the time of the instant disposition is the most short period in light of social norms, it can be said that the said determination itself lacks rationality.

However, Article 11 of the National Tax Collection Act provides that the head of a tax office may designate a time limit for payment of national taxes within 30 days from the date on which a notice for payment is served. Article 7 of the Framework Act on National Taxes provides that the 14th day after the date on which the time limit for payment has already expired or the date on which the time limit for payment arrives shall be regarded as the time limit for payment. Thus, the taxation disposition cannot be deemed defective merely because the time limit for payment is too short. In this case, Korea-A receives a notice for tax payment on March 4, 2008, and thus, even if the time limit for payment is specified on March 5, 2008, it cannot be physically impossible to perform the duty for tax payment within the time limit for payment.

(5) The instant disposition is lawful, and the Plaintiff’s assertion disputing this is without merit.

3. Conclusion

rejection of a claim.