Revocation of disposition imposing capital gains tax

In filing an administrative litigation seeking cancellation of taxation disposition, it must undergo a prior trial procedure such as a request for review or a request for trial under the Framework Act on National Taxes.

The contents of the judgment are the same as attachment.

2013Nu48622 Invalidity of the disposition of gift tax taxation

Quantity****

Head of Sungnam Tax Office

December 2, 2016

on 19, 2014

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The disposition of imposition of capital gains tax of KRW 15,264,620 on November 1, 2013 rendered by the Defendant to the Plaintiff on November 1, 2013 shall be revoked (the imposition amount was corrected to the extent that it does not go against the intent of the parties)

1. Details of the disposition;

A. On February 15, 1974, the Plaintiff completed the registration of ownership transfer on the Chungcheong District Court's Chungcheong District Court's Chungcheong District Court's Cheongju-si Security Area (hereinafter referred to as "the instant land").

B. On June 8, 2012, the Plaintiff sold this case’s land to leapA (hereinafter “B”).

C. The Cheong-A completed the registration of ownership transfer on July 18, 2012 with respect to the instant land by Chungcheong District Court (Cheongju District Court).

D. The Plaintiff, as to the transfer of this case, did not err in the judgment of the Defendant for not less than eight years.

For this reason, capital gains tax exemption was reported.

E. On November 1, 2013, the Defendant issued a disposition imposing capital gains tax of KRW 15,264,620 for the year 2012 (hereinafter “instant disposition”) on the ground that the Plaintiff did not meet the requirements for reduction and exemption for self-arable farmland under Article 69 of the Restriction of Special Taxation Act (i.e., re-villages/self-arables, etc. for at least eight years) with respect to the instant transfer.

[Reasons for Recognition] Facts that there is no dispute between the parties, entry of Gap evidence 1, entry of Eul evidence 1 and 2, and purport of whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

The plaintiff did not follow the procedure of the previous trial on the disposition of this case.

Law is legitimate.

B. Determination

(1) Relevant provisions

Where an administrative appeal against a disposition concerned may be filed pursuant to Acts and subordinate statutes.

Notwithstanding the provisions of this Chapter, any person whose rights or interests are infringed due to an illegal or unreasonable disposition or a failure to receive a necessary disposition, which is a disposition under the Framework Act on National Taxes or other tax-related Acts, may file an action without going through such a review: Provided, That notwithstanding the provisions of Article 18 (1) (main sentence), (2) and (3) of the Framework Act on National Taxes, any administrative litigation against an illegal disposition under Article 55 of the Framework Act on National Taxes shall not be filed without going through a review request or a request for adjudgment under the Framework Act on National Taxes and its decision thereof (Article 56 (2) of the Framework Act on National Taxes), and any request for review shall be filed within 90 days from the date on which he/she becomes aware of the relevant disposition (Article 61 (1) of the Framework Act on National Taxes when he/she receives a notice of disposition), and any person who is in violation of rights or interests shall file an action within 90 days from the date on which he/she becomes aware of such disposition (Article 61 (1) of the Framework Act) of the National Taxes).

(2) In full view of the foregoing relevant provisions, the filing of an administrative litigation seeking the revocation of a tax disposition ought to undergo the pre-trial procedure, such as a request for examination or a request for trial, as prescribed by the Framework Act on National Taxes, unlike the discretionary principle of administrative litigation, which applies to the general administrative litigation. If a request for examination or a request for trial, etc. on a tax disposition is known or received, it shall be within 90

(3) The plaintiff did not challenge the disposition of this case without filing a request for examination or a request for judgment under Article 56(2) of the Framework Act on National Taxes (Article 55(5) of the Framework Act on National Taxes).

No request for examination under the Board of Audit and Inspection Act as prescribed in subparagraph 3 shall be filed in the end, and the lawsuit in this case is unlawful.

(4) The Plaintiff was aware of the Defendant’s written response on February 13, 2014 during the course of the instant lawsuit that he/she ought to file an administrative appeal against the instant disposition. However, in light of the purport of the principle of administrative appeal transfer, the Plaintiff asserts that the Plaintiff should be relieved as a matter of course, but such assertion cannot be accepted.

3. Conclusion

Thus, the lawsuit of this case is unlawful and dismissed.