The rejection disposition of an application for correction against a post-report shall not be subject to appeal litigation.

Article 45-2 (1) of the Framework Act on National Taxes recognizes a right to demand rectification from a person who has submitted a tax base return within the statutory deadline, and thus rejection of a request for rectification after the deadline is

Article 45-2 of the Framework Act on National Taxes

2017-Gu Partnership-62540 Revocation of a disposition rejecting capital gains tax rectification

AA

O Head of tax office

2017.08.29

2017.26

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The defendant's rejection disposition of correction of KRW 260,334,739 against the plaintiff on August 25, 2016 is revoked.

1. Details of the disposition;

A. On September 9, 1971, the Plaintiff acquired and owned 45-4 and six parcels in ○○○○○-dong, ○○○○○○-dong, and 6 parcels (hereinafter referred to as “land subject to dispute”). The land at issue was incorporated into the site for the second adjoining Highway (Yyang-Seongnam) implemented by the head of the Seoul Regional Construction and Management Administration (hereinafter referred to as the “project implementer”) under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter referred to as the “Land Compensation Act”), and the compensation for the land at issue was determined on April 23, 2015 by the Central Land Expropriation Committee’s ruling of expropriation on April 23, 2015 (hereinafter referred to as the “Land Compensation Act”). The date of expropriation was determined as ○○○, ○○, ○○, ○○○, ○○○, and ○○○○○○○ on May 26, 2015.

B. On May 18, 2015, upon the Plaintiff’s refusal to receive the said compensation, the project implementer deposited the deposited amount as the Plaintiff with the Suwon District Court ○○○○○○○○○○○ in 2015.

C. On June 5, 2015, the registration of transfer of ownership was completed in the name of the Republic of Korea on the ground of land expropriation on May 26, 2015.

D. On October 14, 2015, the Plaintiff received deposited money on October 14, 2015, and on October 15, 2015, calculated by applying the tax rate prescribed under Article 92 of the Income Tax Act to the Defendant on October 15, 2015 (including totaling KRW 260,334,739, totaling penalty tax for failure to report and pay in good faith) 1,649,389,539, and special rural development tax 20,000.

The payment was made.

E. On June 29, 2016, the Plaintiff was unaware of the fact that the Defendant was deposited, and the notification of deposit was not received. As such, the Plaintiff filed a request for correction to the effect that an additional tax of KRW 1260,334,739 should be refunded out of the transfer income tax reported and paid by the Plaintiff on October 14, 2015, which was the date of receipt of deposit. However, the Defendant rejected it on August 25, 2016 (hereinafter “instant disposition”).

F. The Plaintiff appealed and filed an appeal with the Tax Tribunal on September 29, 2016, but was dismissed on December 30, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 7, Eul evidence 1 to 3, and 5 (including each number), the purport of the whole pleadings

2. The plaintiff's assertion

In the process of accepting the land at issue, the Plaintiff was unable to receive the official document from the project implementer, etc., and the notice of deposit was not served, and the Plaintiff received the notice of deposit from October 2, 2015. The project implementer deposited the compensation on the ground that the Plaintiff refused to receive the compensation, but the Plaintiff did not refuse to receive the compensation, so the cause of deposit should be considered as absolute uncertainty, and the time of transferring the land at issue should be deemed as October 14, 2015, which is the date of receiving the deposit. Nevertheless, the Defendant issued the instant disposition rejecting the Plaintiff’s request for correction on a different premise, and thus the instant disposition should be revoked as unlawful.

3. Determination as to the defendant's defense prior to the merits

A. Defendant’s defense prior to the merits

Article 45-2(1) of the Framework Act on National Taxes prescribes that a person who has filed a tax base return by the statutory due date of return may file a request for correction, thereby limiting the person subject to a request for correction to the person who has filed a tax base return by the statutory due date of return. Since the Plaintiff filed a tax base return on the land at issue on October 15, 2015, which is after the statutory due date of return, to the Defendant, the Plaintiff is not entitled to a request for correction under Article 45-2(1) of the Framework Act on National Taxes, and thus, the instant disposition rejecting the

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination on the defense prior to the merits

1) Issues of the instant case

According to Articles 105(1)1 and 94(1)1 of the Income Tax Act, a resident who transfers assets belonging to the land shall file a tax base return with the head of a tax office having jurisdiction over the place of tax payment within two months from the last day of the month in which the transfer date falls. Since the Plaintiff filed a tax base return with the Defendant on October 15, 2015, he/she did not recognize the right to request correction under Article 45-2(1) of the Framework Act on National Taxes. Accordingly, the issue of this case is whether the date of settlement can be deemed as the date of receipt of deposit money when deposit is made on the grounds of the refusal to receive compensation due to land expropriation.

2) Determination as to the transfer time of the pertinent land

A) The first sentence of Article 98 of the former Income Tax Act (amended by Act No. 14389, Dec. 20, 2016; hereinafter the same applies) stipulates that "the time of acquisition and time of transfer of assets shall be the date of liquidation of the price of the assets except in cases prescribed by Presidential Decree, such as where the date of liquidation is unclear, etc." In cases prescribed by Presidential Decree where the date of liquidation of the price is unclear, Article 162 (1) 7 of the Enforcement Decree of the Income Tax Act provides that "where the assets are expropriated for public works pursuant to the Land Compensation Act or other Acts, the date of liquidation of the price, the date of commencement of expropriation, or the date of receipt of transfer registration of ownership, whichever comes earlier: Provided, That where compensation is deposited in a lawsuit on ownership, it shall be the date of confirmation of a judgment related to ownership."

B) Comprehensively considering the above provisions, where real estate is expropriated for public projects pursuant to the Land Compensation Act, the date of liquidation, the date of expropriation, and the date of prompt transfer of the ownership transfer registration shall be deemed the date of earlier. Regarding this case, health expenses and the date of deposit of key land is May 18, 2015. The date of receipt of ownership transfer registration is June 5, 2015. The fact that the date of receipt of ownership transfer registration is October 14, 2015 is no dispute between the parties or that the date of receipt of the deposit can be acknowledged according to the aforementioned evidence. Thus, it is reasonable to view that the Plaintiff’s submission of deposit under Article 162(1)7 of the former Enforcement Decree of the Income Tax Act can be deemed as the date of receipt of deposit under Article 162(1)1 of the former Enforcement Decree of the Income Tax Act (the date of liquidation under Article 162(1)7 of the former Income Tax Act) and the date of receipt of deposit after the date of receipt of the deposit within the due date.

3) Determination as to the legitimacy of the instant lawsuit

A) Since a request for correction filed after the lapse of the statutory deadline for filing a request for correction is illegal and thus the tax authority does not have a duty to either determine or rectify the tax base and amount of tax or take a disposition of refusal, it cannot be deemed a disposition of refusal that is subject to appeal, even if the tax authority refuses to rectify the request (see, e.g., Supreme Court Decision 2014Du44830, Mar. 12, 2015). Article 45-2(1) of the Framework Act on National Taxes recognizes the right to claim for correction to the person who has filed a tax base return by the statutory deadline for filing

B) However, as seen earlier, it is reasonable to view that the transfer time of the land at issue is May 18, 2015, when the project implementer deposited the Plaintiff’s refusal as the cause of deposit. Thus, if the Plaintiff filed a return on the tax base of October 15, 2015 (if the return on the tax base of the transfer income is not filed by July 31, 2015, which is the statutory return date of the transfer income tax return, 205-2(1) of the Framework Act on National Taxes, the transfer registration of the land at issue does not constitute a rejection disposition that is subject to appeal litigation. Accordingly, according to Article 98 of the former Income Tax Act and Article 162(1)7 of the Enforcement Decree of the Income Tax Act, the transfer registration date of the land at issue falls short of 10.5 months from the date of expropriation (the date of expropriation falls short of 16.5 days from the 20th anniversary of the date of expropriation, 10.5 days from the date of expropriation, 16.5 days from the date of expropriation

4. Conclusion

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