Cho High Court Decision 2010Du3156 ( November 23, 2010)

Notice of payment without preliminary return is a collection disposition, and the imposition of additional tax is legitimate.

If a preliminary return of capital gains tax is made and the amount of tax is not paid, it is only a collection disposition, but it cannot be deemed as a taxation subject to a revocation lawsuit, and it is unlawful and dismissed, and it is lawful that an additional tax is imposed.

2011Nu2244 Revocation of disposition of revocation of capital gains tax imposition

KimA

The Director of Gangnam District Office

Seoul Administrative Court Decision 2010Gudan28345 decided June 14, 2011

October 26, 2011

December 7, 2011

1. The judgment of the first instance shall be modified as follows:

A. The Defendant’s lawsuit on the claim that the revocation of the taxation disposition, excluding additional tax, and the increased additional tax, among the dispositions rendered by the Defendant on July 12, 2010 and October 11, 2010, sought the revocation of the taxation disposition, is dismissed.

B. The plaintiff's remaining claims are dismissed.

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

The decision of the first instance court revoked the decision to the Plaintiff: ① (i) the Defendant’s notification of the payment of capital gains tax of KRW 8,011,820 on July 12, 2010, KRW 240, KRW 350, KRW 96, and increased KRW 140 on KRW 22,758, KRW 770 on October 10, 2010, ② the notification of the payment of capital gains tax of KRW 22,758, KRW 770 on KRW 682,760, and increased 273,100 on KRW 273, and KRW 100 on each of the above dispositions are revoked (the Plaintiff clearly stated that this court

1. The part citing the judgment of the court of first instance

The reasoning of the judgment of this court is that the part of the judgment of the court of first instance is the same as the part of the judgment of the court of first instance, except in the case where the second 9th and the second 9th 3th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th

2. Determination

A. The nature of each of the dispositions in this case

According to the provisions of Article 22 of the Framework Act on National Taxes, Article 10-2 of the Enforcement Decree of the same Act, and Articles 105, 106, and 116 of the Income Tax Act, capital gains tax is a tax on the method of filing a return, which is determined at the time of the preliminary return of the tax base and tax amount, and payable together with the return. The notification that a taxpayer issued a notice to pay the same tax amount as the reported tax amount without any correction for the matters reported by the tax authority after only making a preliminary return of the tax base and tax amount and not paying the tax amount is a final tax collection disposition for the collection of the tax (see, e.g., Supreme Court Decision 2003Du8180, Sept. 3, 2004). However, where a taxpayer fails to pay the reported tax amount while filing a preliminary return of capital gains tax, the portion of each of the dispositions in this case has the nature of the taxation for erroneous payment and nature of the collection disposition, and it is merely a collection of the tax already finalized (see Supreme Court Decision 192Nu3131.

B. Whether a notice of the payment of additional dues and increased additional dues is a disposition

The additional dues or increased additional dues provided for in Articles 21 and 22 of the National Tax Collection Act (amended by Act No. 10527, Apr. 4, 201) are naturally generated by law without the final procedure by the tax authorities, since if national taxes are not paid by the payment deadline, the Defendant’s instruction for the payment of additional dues and increased additional dues, along with each of the instant dispositions, cannot be deemed a disposition subject to appeal litigation (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005). Therefore, a lawsuit seeking revocation of the partial disposition is unlawful on the premise that the above additional dues and increased additional dues are a taxation or collection disposition (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005).

C. Whether the claim seeking revocation of the taxation disposition regarding each of the instant dispositions, other than additional tax, is legitimate

As seen earlier, the part of each of the instant dispositions, excluding penalty tax, cannot be deemed tax assessment, is unlawful as it is subject to the absence of a lawsuit seeking revocation of the partial taxation, premised on the premise that each of the aforementioned parts is a tax assessment.

D. Whether the imposition of additional tax is lawful

As seen earlier, the Plaintiff did not pay the returned tax amount when filing a preliminary return of each transfer income tax. As such, the Defendant’s imposition of an additional tax for unfaithful payment at the time of each of the instant dispositions is lawful pursuant to Article 47-5 of the Framework Act on National Taxes. The claim seeking revocation of the imposition of an additional tax for unfaithful

E. Determination as to the claim for revocation of each of the dispositions in this case as a collection disposition

Article 105(1) of the Income Tax Act provides that a resident who transfers assets subject to the imposition of capital gains tax shall file a return on the tax base of transfer income (hereinafter referred to as "preliminary return") within two months from the end of the month or quarter to which the transfer date belongs, depending on the type of assets. Article 106(1) of the Income Tax Act provides that when a resident files a preliminary return, he shall pay the tax amount calculated under Article 107 which has been subject to the tax credit, etc. at the district tax office having jurisdiction over the place of tax payment. The latter part of Article 116(1) provides that where a resident fails to pay all or part of the tax amount payable by the preliminary return under Article 106, the unpaid tax amount shall be collected within three months from the date on which the deadline for payment expires. The purport of the preliminary return payment system is to secure tax sources early, promote the efficiency of tax collection, prevent cumulative tax burden, and that Article 114(1) of the Income Tax Act provides that a person who is obliged to file a preliminary return shall not be filed within 20 years prior to the final return.

3. Conclusion

A claim seeking revocation of a tax disposition regarding the remainder of each of the instant dispositions, excluding additional dues and aggravated additional dues, and a claim seeking revocation of a notice of guidance for payment of increased additional dues, shall be dismissed as unlawful. The part seeking revocation of a tax disposition among each of the instant dispositions, and the part seeking revocation of a tax disposition, shall be dismissed as it is without merit. The judgment of the first instance court did not determine the claim for revocation of a notice of guidance for payment of increased additional dues and increased additional dues, and thus is modified as set forth in the Disposition above.