Changwon District Court 201Guhap2338 ( November 24, 2011)

Appellate Decision 201J 0831 (Law No. 105,03)

The period of filing a lawsuit is illegal as the period of filing a lawsuit

A lawsuit seeking cancellation of a national tax disposition shall be instituted within 90 days from the date the decision on a request for examination or adjudgment under the Framework Act on National Taxes is notified, and such lawsuit was filed after 90 days from the date the decision of the Tax Tribunal was notified, and the period for filing the lawsuit

Article 56 of the Framework Act on National Taxes

(C)The revocation of the disposition imposing capital gains tax

XX Kim

Head of Changwon Tax Office

Changwon District Court Decision 201Guhap2338 Decided November 24, 2011

June 28, 2012

September 20, 2012

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

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

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of capital gains tax of KRW 000 on November 5, 2010 against the plaintiff on November 5, 201 shall be revoked.

1. Details of the disposition;

A. On December 23, 2009, the Plaintiff acquired and owned a 2,023 square meters per annum, 00-1, 200-5, 200-5, 347 square meters per annum (hereinafter “each of the instant lands”), and transferred its ownership to the Republic of Korea (the Ministry of Land, Transport and Maritime Affairs (the Ministry of Land, Transport and Maritime Affairs) on the ground of an agreement on the acquisition of public land on December 23, 2009.

B. On February 16, 2010, the Plaintiff filed a preliminary return on the tax base of capital gains tax on each of the instant land to the Defendant, and filed an application for tax reduction or exemption on the following grounds: (a) each of the instant land constitutes “self-arable farmland for at least eight years” under Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter

C. However, on November 5, 2010, the Defendant excluded the application of the above reduction and exemption provisions, and imposed KRW 000 on the Plaintiff the transfer income tax belonging to the year 2009 (hereinafter “instant disposition”).

D. On February 22, 201, the Plaintiff dissatisfied with the instant disposition and filed a request for a trial with the Tax Tribunal on February 22, 201, but the Tax Tribunal dismissed the request for a trial on May 3, 201, and the said decision was notified to the Plaintiff on May 10, 201.

[Ground of recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 1, the purport of the whole pleadings

2. Determination as to the legitimacy of the instant lawsuit

ex officio, we examine the legitimacy of the instant lawsuit.

The instant lawsuit is a lawsuit seeking cancellation of the instant disposition, and the lawsuit seeking cancellation of the disposition of national taxes, such as income tax, cannot be filed without going through 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 of receipt of the notification of the decision on the request for examination or adjudgment (Article 56(2) and (3) of the Framework Act on National Taxes). It is evident that the instant lawsuit was filed on August 9, 201, which was 90 days after the date of notification of the decision by the Tax Tribunal. Thus, it is unlawful because the period of filing

3. Conclusion

Therefore, the lawsuit of this case shall be dismissed without the need to determine the plaintiff's assertion, and since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed as per Disposition.