National Tax Service Review and Transfer 2011-0088 (201.03)

Any taxation subject to revocation lawsuit can not be deemed as a notification of capital gains tax without payment.

The principal amount of capital gains tax is merely a collection disposition for the collection of the tax already finalized to notify that the same amount as the reported amount should be paid without any correction. Therefore, it cannot be viewed as a taxation subject to revocation lawsuit. Therefore, it is legitimate to impose an erroneous payment for arrears. Therefore, it is dismissed.

Article 22 of the Framework Act on National Taxes

Article 47-5 of the National Tax Basic Act

2011Guhap2252 Revocation of disposition of imposing capital gains tax

Section AA

Head of the District Tax Office

April 24, 2012

May 8, 2012

1. The Defendant’s action against the Plaintiff on August 11, 2010, excluding the remainder of the disposition imposing capital gains tax for the year 2009, shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

On August 11, 2010, the Defendant confirmed that the imposition of capital gains tax of KRW 000 for the year 2009 against the Plaintiff is null and void.

1. Details of the disposition;

A. On May 2, 2007, the Plaintiff acquired KRW 000,104 square meters (hereinafter “the land of this case”) for the purpose of 000,000,000, O00, 1,104 square meters (hereinafter “the land of this case”), and thereafter, on the land of this case, on May 26, 2009, the procedure for the auction of real estate was under way with Jeonju District Court Support 2007,000, Jeonju District Court Support 2000, and on May 26, 2009, the land of this case was sold to Park DoD.

B. On May 26, 2010, the Plaintiff reported the acquisition value of the instant land to the Defendant under Article 110 of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter “Income Tax Act”) and reported the transfer value of KRW 000,000, and did not pay the transfer income tax for the year 2009.

C. Accordingly, on August 11, 2010, the Defendant issued a tax notice to pay KRW 000,000, including the Plaintiff’s and the additional paid-in additional paid-in capital gains tax for the year 2009 (hereinafter “instant disposition”).

D. However, on November 3, 2010, the Plaintiff filed a request for reduction or correction of capital gains tax with the Defendant, claiming that the transfer value of the instant land was “0 won, different from the initial return,” and the Defendant rejected the correction of the reduction or correction on November 8, 2010 on the ground that the initial report of capital gains tax, the transfer value of which was the transfer value under Articles 88(1) and 96(1) of the Income Tax Act, was justifiable.

E. On November 26, 2010, the Plaintiff filed an objection with the Defendant against the disposition rejecting the correction, but the objection was dismissed on December 23, 2010, and the Plaintiff filed a request for examination with the Commissioner of the National Tax Service on March 17, 201, and received a decision to dismiss the request for examination on June 3, 201.

[Grounds for Recognition] The non-speed facts, Gap evidence 1, 2, and 12, Eul evidence 1, Eul evidence 2, and Eul evidence 4, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The actual owner of the instant land was the Plaintiff’s father E., and ChoE, while borrowing a large amount of money from bond holders as collateral in the process of constructing facilities for older persons and children on the instant land, the instant land was voluntarily sold in the process of voluntary auction, and the instant land was awarded at a higher price without delay in light of the officially assessed land price or court appraisal, and the sales price of surrounding land in the process of voluntary auction, etc., and all of them were determined by the above bond holders’ agriculture and cross-consing. Therefore, it is unreasonable for the Defendant to consider the successful bid price formed unfairly high to the Plaintiff as the transfer price under the Income Tax Act and impose capital gains tax on the Plaintiff.

B. Defendant’s assertion

Since capital gains tax is determined by a return that is not a decision made by a tax authority and is obligated to pay the amount of tax together with the report, and issuing a tax notice to ensure that the same amount of tax as the reported amount is paid by the tax authority cannot be deemed tax assessment. Therefore, the part seeking confirmation of imposition of principal

3. Determination

(a) Relevant statutes;

The entries in the attached Table-related statutes are as follows.

B. Whether the instant lawsuit is lawful

1) According to the provisions of Article 22 of the former Framework Act on National Taxes (amended by Act No. 911 of Jan. 1, 2010, hereinafter referred to as the "National Tax Basic Act"), Article 10-2 of the Enforcement Decree of the same Act, Articles 110, 111, and 116 of the Income Tax Act, and capital gains tax are taxes on which a taxpayer has a duty to pay the amount of tax determined and payable together with the return when the taxpayer files the tax base and tax amount, and it is merely a collection disposition for the collection of the final tax, for which the tax authority issued a notice that the taxpayer should pay the same amount of tax as the reported amount without correction as the tax base and tax amount because the taxpayer fails to pay the amount of tax (see Supreme Court Decision 2003Du8180, Sept. 3, 2004). However, where a taxpayer fails to pay the reported amount of tax after filing a return, it is possible to impose additional tax pursuant to Article 47-5 of the Framework Act on National Taxes, and it is deemed a tax imposed.

2) On May 26, 2010, the following facts were examined: (a) the Plaintiff reported the tax base of capital gains to the Defendant on May 26, 2010; (b) the Defendant did not pay the tax amount; and (c) the Defendant issued a tax notice to the Plaintiff on November 8, 2010 (=00 won for the principal tax + KRW 000 for the additional tax, KRW 00 for the additional tax, and KRW 100 for the additional tax) of capital gains tax for the year 209, including the additional tax for the payment on November 8, 2010, to pay the Plaintiff by August 31, 2010. The above facts are that the portion of the instant tax disposition, other than the additional tax for the additional tax for the past payment, has the nature of the tax disposition and the nature of the tax disposition; (d) the portion of the instant tax disposition, other than the additional tax for the additional tax for the past tax for the tax payment, is merely the part for the collection of the previous tax disposition for the Plaintiff’s unlawful.

C. Whether the part on imposition of additional tax for arrears among the disposition of this case is legitimate

As seen earlier, the fact that the Plaintiff did not pay the reported tax amount upon filing a transfer income tax report. Therefore, the Defendant’s imposition of the additional tax for unfaithful payment at the time of the instant disposition is lawful and lawful under Article 47-5 of the Framework Act on National Taxes, and therefore, there is no reason for seeking nullification of the portion of the tax amount for which the non-faithful payment was made

3. Conclusion

Therefore, the lawsuit seeking confirmation of effects on the remainder of the disposition of this case is unlawful, and it is dismissed, and the remaining claims of the plaintiff (the part seeking confirmation of invalidity on the part of the disposition of this case) are dismissed. It is so decided as per Disposition.