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(영문) 서울행정법원 2016. 11. 10. 선고 2016구합68120 판결
이의신청만을 거친 경우 적법한 전심절차를 거친 것으로 볼 수 없음[국승]
Title

If an objection has been filed only, it shall not be deemed to have undergone a legitimate procedure of trial.

Summary

The lawsuit of this case is unlawful because it cannot be deemed to have gone through a legitimate trial procedure if only an objection was filed.

Related statutes

Article 55 of the Framework Act on National Taxes

Cases

Revocation of disposition imposing capital gains tax

Plaintiff

Maximum number of beneficiaries

Defendant

The Director of Gangnam District Office

Conclusion of Pleadings

October 13, 2016

Imposition of Judgment

November 10, 2016

Text

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 1,523,166,340 (including additional tax) for the Plaintiff on January 4, 2016 shall be revoked.

Reasons

1. Details of the disposition;

A. On August 23, 1985, the Plaintiff completed the registration of ownership transfer on the land of 739-21 and 494.3 square meters (hereinafter “instant land”) of the Gangnam-gu Seoul OOdong on August 22, 1985, and registered the business under the trade name “AAA” to engage in the real estate development and lease business with respect to the instant land on April 1, 2013.

B. On January 9, 2014, the Plaintiff: (a) integrated the AA’s entire business with BB (representative KimCC and trade name after the change: DDR; hereinafter “instant corporation”); (b) completed the registration of ownership transfer under the name of the instant corporation on the ground of investment in kind on April 9, 2014 with respect to the instant land on the ground of the investment in kind as of January 9, 2014; and (c) issued to the New Accounting Corporation the amount of assets worth KRW 6.89 billion with an appraisal of the aforementioned amount of assets in kind; and (d) KRW 6.9 billion with the amount of liabilities KRW 6.2 million with the amount of assets worth KRW 6.39 billion with the amount of net asset value of KRW 497 billion with the Plaintiff.

C. On April 30, 2014, the Plaintiff applied for a carried-over taxation of capital gains tax of KRW 1,286,240,792 to the Defendant by applying the provisions, such as a carried-over taxation of capital gains tax on the consolidation between small and medium enterprises under Article 31 of the Restriction of Special Taxation Act. However, on September 25, 2015, the Defendant issued a prior notice of taxation of capital gains tax on the ground that the secured debt of the right to collateral security established with respect to the instant land should be excluded from the debt amount when calculating the net asset value of AA as contingent debt, and that the requirements for filing an application for carried-over taxation of capital gains tax were not satisfied, and on January 4, 2016, the Plaintiff decided and notified the Plaintiff of capital gains tax of KRW 1,523,16,340 (including additional tax) for the year 2014 (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an objection with the Seoul Regional Tax Office on April 1, 2016, but was dismissed on May 12, 2016, and thereafter did not file a request for examination or a request for trial.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, 2, Gap evidence 3-1, 2, Gap evidence 4, Eul evidence 1, and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

The defendant asserts that since the plaintiff filed the lawsuit of this case without going through the pre-trial procedure under the Framework Act on National Taxes, the lawsuit of this case should be dismissed.

B. Determination

Articles 56(2) and 55(1) of the Framework Act on National Taxes provide that any administrative litigation to revoke any illegal or unreasonable disposition under the Framework Act on National Taxes or other tax-related Acts may not be filed without going through a request for examination or adjudgment under the Framework Act on National Taxes and a decision thereon. Articles 61(1) and 68(1) of the same Act provide that any request for examination or adjudgment shall be filed within 90 days from the date on which the relevant disposition is known. As such, in order to file an administrative litigation seeking revocation of a taxation disposition, a request for examination or adjudgment must undergo lawful pre-trial

According to the above facts, the plaintiff filed a lawsuit of this case without requesting an examination or a request for judgment on the disposition of this case, and even after the lawsuit of this case was filed, the defendant filed an objection only to the disposition of this case and did not file a request for examination or a request for judgment pursuant to the Framework Act on National Taxes within 90 days after the notice of rejection of the objection.

As such, the instant lawsuit cannot be seen as a request for examination or adjudgment under the Framework Act on National Taxes, it is unlawful (90 days from the date of service of a written decision dismissing an objection, which is a period for filing a request for examination or adjudgment) as it does not go through the pre-trial procedure, and thus, it is also impossible to supplement the requirements for litigation.

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.

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