A request for correction filed after the lapse of the period for filing a request for correction shall be unlawful and thus the tax authority does not have any obligation to determine or rectify the tax base and amount or to refuse

Since a request for correction filed after the lapse of the period for filing a request for correction is illegal and thus the tax authority does not have a duty to determine, correct, or reject the tax base and amount of tax, it shall not be deemed a rejection disposition subject to appeal even if the tax authority refuses correction.

Article 45-2 of the National Tax Basic Act

Incheon District Court-2016-Gu Partnership-54255

JeonO

OO Head of the tax office

2017.06.01

2017.08.17

1. The instant lawsuit shall be dismissed.

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

On June 28, 2016, the disposition rejecting the correction of the gift tax made against the plaintiff by the defendant of the Gu office shall be revoked.

1. Basic facts

A. The plaintiff was donated land from AA, which was referred to June 28, 2005, listed in the separate sheet 1 to 1 to 5, and received the gift of each land listed in the separate sheet 6 to 9 on December 28, 2006 (hereinafter collectively referred to as "each land of this case").

B. The Plaintiff, immediately after the donation of each of the instant lands, filed an application for exemption of gift tax with the Defendant pursuant to Article 58(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 5584, Dec. 28, 1998; hereinafter the same) and Article 57(1) and (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 15976, Dec. 31, 1998; hereinafter the same), and Article 15(2) of the Addenda of the Restriction of Special Taxation Act (amended by Act No. 7003, Dec. 30, 2003).

C. On December 2, 2008, the Defendant determined that the Plaintiff’s act of acquiring each of the instant lands does not constitute a reduction or exemption of gift tax under the provisions of the above B., and imposed a gift tax of KRW 000 on the Plaintiff (hereinafter “instant disposition imposing gift tax”). Accordingly, on June 22, 2009, the Plaintiff paid KRW 00 and the principal tax of KRW 88,249,430 to the Defendant.

D. After that, on May 10, 2013, the Plaintiff filed a lawsuit seeking the return of unjust enrichment with respect to the gift tax stated in the foregoing Paragraph (c) on the premise that the disposition imposing the gift tax of this case is null and void as a matter of course. On September 17, 2013, the court of first instance dismissed the Plaintiff’s claim on the ground that there was no gross error in interpreting the point of time for determining the requirements for exemption from the gift tax of this case, even if it is found that there was a gross error of law as to the disposition imposing the gift tax of this case, it cannot be said that such error is evident (00 district court 200Da201300). Meanwhile, the court of second instance of the said lawsuit dismissed the Plaintiff’s appeal with the purport similar to the court of first instance on April 10, 2014 (Seoul High Court 2013Na0000) and on July 10, 2014 (hereinafter collectively referred to as “civil judgment”).

E. On June 3, 2016, on the grounds that the illegality of the disposition imposing the gift tax of this case was recognized in the judgment stated in the foregoing paragraph (d) above, the Plaintiff filed a subsequent request for correction pursuant to Article 45-2(2)1 of the Framework Act on National Taxes to the Defendant. However, on June 28, 2016, the Defendant issued a notice of the result of handling the request for correction (hereinafter referred to as “instant notice”) to the effect that the period of exclusion of the subsequent request for correction was already expired.

F. The Plaintiff appealed and filed an appeal with the Tax Tribunal on July 15, 2016. However, the Tax Tribunal dismissed the said appeal on the same ground as the Defendant was born on October 12, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1-3, Gap evidence Nos. 3 and 5, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The imposition of gift tax of this case is an illegal disposition made by the Defendant in accordance with the erroneous interpretation of the relevant Acts and subordinate statutes, such as the former Regulation of Tax Reduction and Exemption Act. Thus, the Defendant is obligated to refund the gift tax erroneously paid to the Plaintiff by accepting the Plaintiff’s request for correction pursuant to Article 51 of the Framework Act on National Taxes, regardless of whether the Plaintiff’s request

3. Judgment on the defendant's main defense

A. Summary of the defendant's assertion

The civil judgment of this case does not correspond to "when transactions or acts, etc., which serve as the basis for calculating the tax base and the amount of tax in the first declaration, determination or correction as the grounds for the subsequent request for correction under Article 45-2 (2) 1 of the Framework Act on National Taxes, are confirmed to be different by the judgment of the court in the relevant lawsuit." Even if this falls under this case, the limitation period of the request for correction has already expired, and the defendant is not obligated to correct the tax amount or to refuse the above request for correction, and thus, the notification of this case cannot be deemed as the rejection disposition subject to appeal. Accordingly,

B. Determination

(1) Whether the grounds for subsequent request for correction exist

Of the grounds for later filing a claim for correction, "when the transaction, act, etc., as prescribed by Article 45-2 (2) 1 of the Framework Act on National Taxes becomes final and conclusive as different by the ruling on the lawsuit related thereto" means a case where the existence or legal effect of the transaction, act, etc., of which the tax base and the amount of tax are calculated is determined to be different by the ruling in the lawsuit related thereto (see, e.g., Supreme Court Decision 2009Du22379, Jul. 28, 201). According to the reasoning of the evidence No. 1 and the whole pleadings, the civil judgment of this case is clearly determined that the farmland owned by a self-employed farmer at the time of the enforcement of the former Special Taxation Control Act, which was revised as Act No. 5584, Dec. 28, 1998, which became final and conclusive as different by the ruling on the first return, determination, etc., should be made on the basis that the Plaintiff did not meet the requirements for exemption from the gift tax of this case.

According to the facts found above, although the civil judgment of this case did not declare the validity of the disposition imposing the gift tax of this case itself, it can be deemed that the grounds for the disposition imposing the gift tax of this case could not be maintained more properly by recognizing and confirming the illegality thereof were provided (a separate issue is the situation that prevents the validity of the disposition imposing the gift tax of this case as a result of the lapse of the exclusion period of a request for ex post request for correction). Therefore, it is reasonable to deem that the plaintiff had the right to request for correction after the second time under Article 45-2 (2) 1

Therefore, this part of the defendant's defense is without merit.

(2) The lapse of the exclusion period and the existence of the eligibility;

Article 45-2(2) of the former Framework Act on National Taxes (amended by Act No. 1352, Dec. 15, 2015; hereinafter the same) provides that "any person who has filed a return of tax base by the statutory deadline for filing a request for correction concerning the grounds for later filing a request for correction, or who has received the tax base and amount of national taxes, may file a request for determination or correction within two months from the date on which he/she becomes aware of the occurrence of the grounds, regardless of the period stipulated in paragraph (1), if any of the following grounds arises." Meanwhile, a request for correction filed after the expiration of the period for filing a request for correction cannot be deemed a refusal of correction, even if the tax authority refuses correction, without any duty to either determine or rectify the tax base and amount, or to refuse it, (see, e.g., Supreme Court Decision 2014Du4830, Mar. 12, 2015). However, the Plaintiff’s request for correction cannot be seen as being subject to an appeal for correction after the date of the Plaintiff’s request for correction.

Therefore, the lawsuit of this case is unlawful due to the lack of eligibility, and the defendant's main defense pointing this out is with merit.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.