Any lawsuit seeking revocation of a decision to refuse refund is unlawful.

A decision to refuse the refund of an application for a decision to refund the national tax refund or to seek this decision is not a disposition that specifically and directly affects the existence or scope of the right to claim the refund of the taxpayer and thus cannot be deemed a disposition subject to appeal

Article 51 (Appropriation and Refund of National Tax Refund)

2015Guhap1025 Revocation of a disposition rejecting the refund of gift tax

United StatesA

The Director of Incheon Tax Office

December 2, 2016

on October 23, 2016

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The Defendant’s disposition rejecting the refund of gift tax against the Plaintiff on June 5, 2015 is revoked.

1. Details of the disposition;

A. On June 28, 2005, the Plaintiff received each land indicated in the separate sheet Nos. 1 through (5) from AA, referring to the Plaintiff. On December 28, 2006, the Plaintiff received all shares of AA from the land listed in the separate sheet Nos. 7 and the land listed in paragraphs 6, 8, and 9 of the separate sheet Nos. 6, 8, and 9 (hereinafter “each land donated to the Plaintiff”).

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

C. On December 2, 2008, the Defendant rendered a disposition imposing gift tax of KRW 000 on the Plaintiff (hereinafter “instant disposition imposing gift tax”) by determining that the Plaintiff’s act of acquiring each of the instant farmland is not subject to the said provisions.

D. On June 22, 2009, the Plaintiff paid the Defendant a total of KRW 000,000 per principal gift tax, and KRW 000 per additional dues to the Defendant. On July 30, 2010, the Defendant refunded the Plaintiff a total of KRW 000, additional dues, and KRW 000,000 per additional dues, among the Plaintiff’s amount to be paid, on the ground of the error correction.

E. The Plaintiff filed a lawsuit that the Plaintiff should return the gift tax and the additional dues paid by the Plaintiff as unjust enrichment. However, on September 17, 2013, the said court dismissed the Plaintiff’s claim on the ground that: (a) there was an erroneous interpretation of the relevant statute or a serious defect in determining the facts; (b) the Plaintiff’s error in interpreting the relevant statute; (c) the Plaintiff appealed the Seoul High Court’s appeal as 000Na000; and (d) the Defendant’s public official’s error in interpreting the relevant statute and determining the factual relations, thereby making it clear that the defect was not evident. However, the Plaintiff additionally filed a preliminary claim that the Defendant’s public official should compensate for damages, but the said court dismissed both the Plaintiff’s appeal and the conjunctive claim on April 10, 2014, and became final and conclusive by dismissal of the final judgment on July 10

F. On June 1, 2015, the Plaintiff filed a request for a refund of the gift tax and the additional dues with the Defendant, but the Defendant rejected the refund on June 5, 2015 on the ground that the said gift tax and the additional dues were not paid by mistake (hereinafter “instant refusal decision”).

G. On August 28, 2015, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service for the refusal of refund of the instant case, but the Commissioner of the National Tax Service dismissed the request for examination on September 2, 2015.

[Ground of recognition] Facts without dispute, Gap 1 through 6, the purport of the whole pleadings

2. Whether the lawsuit in this case is lawful

A. As to the procedure of the previous trial

(1) The defendant's main defense

Since the Plaintiff filed the instant lawsuit without going through the pre-trial procedure under the Framework Act on National Taxes, the instant lawsuit is unlawful.

(2) Determination

If a revocation suit was filed without taking the procedure of the previous trial without taking the procedure, the defect in the requirements of the previous trial is deemed to have been cured at the time of the closing of argument, even though the requirements of the previous trial were not met at the time of the lawsuit. However, if a request for examination or a request for trial was made and a decision was made during the proceedings, the defect in the requirements of the previous trial at the time of the closing of argument is deemed to have been cured (see

According to the above facts, the plaintiff filed a request for examination with the Commissioner of the National Tax Service on August 28, 2015, while the lawsuit in this case is pending, and the Commissioner of the National Tax Service can recognize the fact that the plaintiff dismissed the request for examination on September 2, 2015. Thus, even if there was a defect in which the plaintiff did not go through the pre-trial procedure at the time of the filing of the lawsuit in this case, it is reasonable to view that the above defect was cured at the time of the closing

(b) Disposition of denial of refund

The provisions pertaining to the refund of national taxes and the determination of national taxes under Articles 51 and 52 of the Framework Act on National Taxes are not only an internal administrative procedure that provides for the refund procedure of the tax authority with respect to the national tax refund and additional dues for which the tax payer's claim for refund has already become final, but also a claim for refund is not finalized only by the determination of the national tax refund (including additional dues) under that provision. Thus, the determination of the refund of national tax or the determination of the refusal to refund is not a disposition that directly affects the existence or scope of the claim for refund against the taxpayer, and it cannot be deemed a disposition that is the object of appeal litigation (Supreme Court en banc Decision 88Nu6436 delivered on June 15, 1989). Therefore, the refusal of refund of this case is not a disposition that specifically and directly affects the existence or scope of the Plaintiff's claim for refund, and thus, the Plaintiff's lawsuit seeking the revocation of the refund refusal

3. Conclusion

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