Seocho 2013west 3588 (Law No. 15, 2014)

The grounds for ex post facto request for correction mean that the dispute on the first report, etc. becomes final and conclusive by the judgment.

The grounds for filing a later request for correction mean the case where the existence or legal effect of the transaction or act, etc. is determined to be different by the judgment in a lawsuit related thereto, and the first declaration, etc. cannot be maintained properly because a dispute concerning the transaction or act, etc. which forms the basis for calculating the tax base and the amount of tax arises after the first declaration, determination or correction is

2014Guhap9080 Claim for restitution of unjust enrichment

AA

O Head of tax office

November 1, 2014

December 1, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On May 16, 2013, the Defendant revoked the Plaintiff’s refusal decision to refund the national tax refund application.

1. Details of the disposition;

가. 원고는 코스닥 등록업체인 주식회사 □□□(원고의 동생인 BBB가 대표이사이고, 2010. 6. 23. 주식회사 ★★★에서 주식회사 □□□로 상호를 변경하였다. 이하 '□□□'라 한다)의 대주주로서 1987. 7. 29. 및 1997. 9. 29. 취득한 □□□의 주식 중 일부인 OOO주(이하 '이 사건 주식'이라 한다)를 양도하고 아래와 같이 양도소득세를 신고.납부하였다.

B. The Plaintiff did not acquire the instant shares on July 29, 1987, but acquired them through inheritance (the date of commencement of inheritance, December 10, 2005), so that the acquisition value is corrected as inheritance value and the refund of OO won is requested as follows. On February 17, 2012, the Defendant filed a request for correction to the Defendant. On May 4, 2012, the Defendant notified the Plaintiff of refusal of the request for correction on the ground that the said request for correction was against three years, which is the period for filing a request for correction pursuant to Article 45-2(1) of the Framework Act on National Taxes. The Plaintiff appealed against this request and filed an objection on June 25, 2012, but the Defendant continued to file a civil petition on the same ground. The Defendant did not refund the remainder of the capital gains tax for 2006, 2000, 2000, 207, 2006, 2006, 206, 2006.

다. 한편, 원고는 2005. 12. 10. 아버지 CCC의 사망으로 서울 OOO구 OOO동 102-2 소재 주택에 관한 110분의 24지분을 취득하여 보유하고 있다가, 2010. 11. 15. ■■■ 주식회사에게 위 지분을 양도하고 원고를 비거주자로, 위 주택을 일반주택으로 하여 양도소득세를 신고・납부하였다. 그 후 원고는 2011. 10.경 위 주택 양도 당시 소득세법상 거주자에 해당하고 피상속인과 동일 세대원인 관계로 1세대 1주택에 해당한다는 이유로 피고에게 양도소득세를 환급해 달라는 경정청구를 하였으나, 피고는 2011. 12. 5. 원고를 거주자로 보기 어렵고 피상속인과 동일 세대원으로 볼 수 없다는 이유로 원고의 양도소득세 경정청구를 거부하였다. 이에 원고는 피고를 상대로 서울행정법원 2012구단21751호로 양도소득세경정청구거부처분 취소소송을 제기하였는데, 서울행정법원은 2013. 2. 6. 원고가 소득세법상 거주자로 볼 수 없고, 상속개시 당시 피상속인과 동일 세대를 이루고 있었다고 볼 수 없다는 이유로 원고의 청구를 기각하는 판결(이하 '이 사건 양도소득세 판결'이라 한다)을 선고하였고, 위 판결은 그 무렵 확정되었다.

D. On February 15, 2013, the Plaintiff became final and conclusive in the instant capital gains tax judgment against the Defendant. The Defendant, under the Korea-U.S. Tax Treaty, filed a claim for correction to refund the instant capital gains tax (i.e., the amount of OO for the year 2006 and the amount of OO for the year 2007, on the grounds that there was no right to impose tax on the capital gains of a non-resident of the U.S. nationality pursuant to the Korea-U.S. Tax Treaty. On May 16, 2013, the Defendant refused the Plaintiff’s claim for correction on the instant capital gains tax after the lapse of the period for filing a claim for correction pursuant to Article 45-2(1) of the Framework Act on National Taxes, on the grounds that the instant capital

E. The Defendant appealed and filed an objection on June 11, 2013, but the Defendant dismissed the Plaintiff’s objection on July 15, 2013. Accordingly, the Plaintiff filed a tax appeal on July 17, 2013, but the Tax Tribunal dismissed the Plaintiff’s appeal on April 15, 2014.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The transfer income tax judgment of this case constitutes grounds for filing a subsequent request for correction under Article 45-2 (2) 1 and 2 of the Framework Act on National Taxes, and thus, the Defendant’s claim of this case refusing the Plaintiff’s request for correction is unlawful despite having to be refunded.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Article 45-2(1)1 of the Framework Act on National Taxes provides that, where the tax base and the amount of tax recorded on the tax base return (where the tax base and amount of tax are determined or corrected under each tax-related Act, referring to the tax base and amount of tax after such determination or correction) exceed those to be reported under the tax-related Acts, a person who has filed the tax base return by the statutory due date, may file a claim with the head of the competent tax office within three years after the statutory due date of return expires, for the determination or correction of the tax base and amount of the national tax for which the initial tax return and the revised tax return have been filed. According to the above facts recognized, the report on the transfer income tax of this case was filed from April 18, 207 to February 29, 2008. The Plaintiff’s request for correction of this case was filed on February 15, 2013 after three years have elapsed from the statutory due date of return. Thus, the Plaintiff’s request for correction of this case was filed upon the filing period for correction under

(2) Article 45-2(2)1 and 2 of the Framework Act on National Taxes is a statutory reporter.

A person who has submitted a tax base and amount of national taxes until now or a person who has received the determination of tax base and amount of tax shall file an initial return. When transactions or acts, etc. which form the basis of calculation of tax base and amount of tax in the determination or correction become final and conclusive differently by a final and conclusive judgment (including reconciliation or other acts having the same effect as the judgment) in the lawsuit pertaining thereto, or when there is a decision or rectification converting the ownership of the income or other taxable objects to a third party (subparagraph 1), he/she may file an application for determination or correction within 2 months from the date he/she becomes aware of the occurrence of such cause, regardless of the period provided in paragraph (1). Article 45-2(2) of the Framework Act on National Taxes provides that "The purpose of the ex post facto request for correction is to expand taxpayers' rights by allowing the taxpayer to file a request for reduction after proving such fact, and thus, it cannot be seen that the first act or act, etc. concerning the transfer of stocks becomes final and conclusive by the judgment or its first determination of tax base and amount of capital gains tax in this case."

(3) Therefore, the Defendant’s disposition rejecting the Plaintiff’s request for correction of the transfer income tax of this case is lawful [In addition, Articles 51(1) and 52 of the Framework Act on National Taxes merely provide for the refund procedure of the tax authority as to the national tax refund and additional dues for which the Plaintiff’s request for refund becomes final and conclusive as to the Plaintiff’s request for refund of a national tax refund under Article 51 of the Framework Act on National Taxes, and the right to refund is not determined only by the national tax refund decision (including additional dues). Thus, the decision rejecting the refund of the Plaintiff’s request for refund of the transfer income tax of this case is not a disposition that has a direct and direct effect on the existence or scope of the right to refund the Plaintiff’s request for refund and payment of the transfer income tax of this case, even if the Plaintiff reported and paid the transfer income tax of this case to his resident, it cannot be deemed that the Plaintiff’s filing of the return of this case’s request with the lapse of the statute of limitations from 2007 to 205.15.208).

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.