Revocation of disposition of allocating proceeds of public auction

In case where the Korea Asset Management Corporation sells the attached property by public auction, the appeal against the disposition of the public auction shall be the Korea Asset Management Corporation that actually conducted the public auction, and the head of the tax office who is the delegated authority shall not be the defendant (see, e.g., Supreme Court Decision 95Nu12026, Sept. 6, 196). Therefore, the appeal against the head of the tax office who is not qualified

Article 13(1) of the Administrative Litigation Act

2016Guhap1327 Revocation of Disposition of Imposition of Gift Tax

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00. Head of tax office

July 5, 2017

July 12, 2017

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 of allocating KRW 9,954,380 to the Plaintiff on August 19, 2015 is revoked.

1. Details of the disposition;

A. On August 26, 2013 through November 30, 2013, the Director of the Regional Tax Office: (a) investigated the consolidation of corporate tax against BBBB, a corporation that the Plaintiff served as the representative director; and (b) investigated the portion of gift tax against the Plaintiff on December 2, 2013 through January 31, 2014; and (c) deemed that CCC held title trust with the Plaintiff on October 6, 201, deeming that BB BB issuance common shares (the face value of KRW 5,000 per share) was held in title trust; and (d) notified the Defendant of taxation data on this.

B. On March 11, 2014, the Defendant imposed a gift tax of KRW 8,146,00 on the Plaintiff (including additional taxes).

C. Upon the Plaintiff’s default of gift tax, on May 3, 2014, the Defendant seized the first floor No. 28 (hereinafter “the instant real estate”) presented by the North Korean EE-dong, 866-195 FF Prize, and requested the Korea Asset Management Corporation to sell it by proxy.

D. On July 20, 2015, the Korea Asset Management Corporation sold the instant real estate at KRW 40,100,000, and distributed KRW 9,954,380 in total to the Defendant on August 19, 2015 (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Director of the Tax Tribunal on October 6, 2015, but the Director of the Tax Tribunal dismissed the Plaintiff’s appeal on June 29, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4, 5, 11, 21, Eul evidence Nos. 1 through 5, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

Unless prescribed otherwise by other Acts, an appeal litigation shall be a defendant against an administrative agency which has taken a disposition, etc. (Article 13(1) of the Administrative Litigation Act).

If it is deemed that the public auction of the attached property needs to be specialized knowledge in the public auction or is not appropriate for the direct auction due to other special circumstances, the head of the tax office may, as prescribed by Presidential Decree, have the Korea Asset Management Corporation conduct the public auction on his/her behalf, and the public auction in this case is deemed to have been conducted by the head of the tax office (Article 61(5) of the National Tax Collection Act). As such, if the Korea Asset Management Corporation conducts the public auction of the attached property, it shall be deemed to have conducted the public auction on his/her behalf, not just by the head of the tax office, but by the delegation of authority. Therefore, if the Korea Asset Management Corporation conducts the public auction of the attached property, the appeal on the disposition of the public auction shall be the defendant against the Korea Asset Management Corporation that actually conducted the public auction, and the delegated head of the tax office shall not be qualified for the defendant (see, e.g., Supreme Court Decision 95Nu12026, Sept. 6, 196).

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.