Cho-2014-C-696 (O3. 18, 2014)

Whether the filing period of an administrative litigation has expired or not;

The Tax Tribunal may recognize the fact that the notice of decision was sent to the plaintiff's domicile by registered mail, and where mail was sent by means of registration, it can be presumed that the plaintiff's domicile arrived at the plaintiff's domicile at that time. The lawsuit in this case was filed with the lapse of 90 days from that time.

Article 55 of the Framework Act on National Taxes and relations with other Acts of Article 56 of the Framework Act on National Taxes

Revocation of disposition imposing capital gains tax

In depth 00

00. Head of tax office

on October 22, 2017

December 2, 2017

1. The instant lawsuit shall be dismissed.

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

The Defendant’s disposition of imposition of x members of capital gains tax belonging to the year 2008 against the Plaintiff on June 1, 2013 is revoked.

1. Basic facts

A. On July 21, 1995, the Plaintiff acquired and owned 00,000,000 main apartment and 000,000,000 main apartment and 00 (hereinafter “previous apartment”) and acquired 00,000 new apartment units on September 30, 2004 due to the redevelopment project for the previous housing.

B. After transferring a newly built house on February 4, 2008, the Plaintiff filed a tax reduction or exemption for capital gains from the acquisition date of the previous house to the sale date of the newly built house pursuant to Article 99-3(1) of the former Restriction of Special Taxation Act (amended by Act No. 9131 of September 26, 2008) with the Defendant around that time.

C. However, on June 1, 2013, the Defendant deemed that capital gains from the acquisition date of the previous house and the day before the acquisition date of the new house do not fall under those subject to tax reduction or exemption under Article 99-3(1) of the former Restriction of Special Taxation Act, and notified the Plaintiff of the correction and notification of the capital gains taxx

D. On September 2, 2013, the Plaintiff appealed and filed an appeal with the Tax Tribunal on December 20, 2013, but the Tax Tribunal dismissed the Plaintiff’s appeal on March 18, 2014.

[Ground of recognition] No dispute, Gap evidence Nos. 1 and 6, and the purport of the whole pleadings

2. Judgment on the main defense of this case

The defendant defense that the lawsuit of this case is unlawful as not complying with the period of filing the lawsuit.

Pursuant to Article 56(2) and (3) of the Framework Act on National Taxes, any administrative litigation against any illegal disposition under the Framework Act on National Taxes or tax-related Acts shall, in principle, not be instituted without undergoing a request for examination or adjudgment under the Framework Act on National Taxes and a decision thereon, and shall be filed within 90 days from the date the decision on the request

Comprehensively taking account of the results of fact-finding and the purport of all pleadings with respect to the Director of the Tax Tribunal, the Tax Tribunal may recognize the fact that the notice of decision was sent by registered mail on March 19, 2014.

However, it can be presumed that a postal item was delivered to an addressee at that time, barring any counter-proof to the special circumstances, such as the loss or return of the postal item in the process of registration (see Supreme Court Decision 2016Du60577, Mar. 9, 2017). Thus, it can be presumed that the notice of adjudication issued by the Tax Tribunal reached the Plaintiff’s domicile around March 19, 2014 (the Plaintiff is presumed to have reached the Plaintiff’s notice of adjudication (the Plaintiff is not an inquiry by the Korea Post on April 4, 2017, submitted by the Tax Tribunal after the closing of the argument in this case). As such, the registration number of the notice of adjudication sent to the Plaintiff’s domicile was not examined by the Korea Post. However, as stated in the foregoing materials, the Korea Post’s computer was possible to inquire about only the postal item less than one year, and thus, it cannot be accepted that the Plaintiff’s lawsuit and the Plaintiff’s lawsuit in this case were filed at the court.

Therefore, the defendant's defense is justified.

3. Conclusion

Therefore, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition.