A lawsuit for confirmation of illegality of an omission may be instituted only by a person who has a legal interest in seeking confirmation that the omission is illegal.

Unless it becomes unnecessary to seize it pursuant to the National Tax Collection Act, there is no obligation that the tax authority shall entrust the registration of cancellation to the relevant government agency.

Article 53 of the National Tax Collection Act

Daejeon District Court 2016Guhap103247

OO

OO Head of the tax office

2017.03.08

2017.04.05

1. Details of the disposition;

A. On March 29, 2002, the Plaintiff completed the registration of ownership transfer with an OOO of receipt on March 29, 2002 with respect to each land listed in the separate sheet No. 2 as of March 29, 2002 by the children of the deceased AA (hereinafter referred to as the “the deceased”).

B. The Defendant imposed each transfer income tax on the deceased on the time limit for payment on December 31, 1996 and the OOO on January 31, 1997 (hereinafter “instant disposition”).

C. On March 17, 1997, the Defendant seized the land indicated in [Attachment 2] Nos. 1 and 4 on March 17, 1997, and the land indicated in [Attachment 2] Nos. 2 and 3 on December 31, 1997 (hereinafter “instant attachment disposition”).

D. On May 4, 1988, the provisional registration of the right to claim the transfer of ownership was completed in the name of OO, OO, OO, OO, OO, or OO on each land listed in the separate sheet No. 2 list (hereinafter referred to as “the seized land”).

E. On August 24, 2015, the Plaintiff actually filed a civil petition for grievance with the intent to request the withdrawal of the instant disposition and the cancellation of attachment, as the standard market price. On September 15, 2015, the Plaintiff sent a reply that the Defendant would not accept the said civil petition on the following grounds: (a) the taxpayer is the Plaintiff’s son BB, not the Deceased; and (b) the transfer value and acquisition value are calculated based on the standard market price.

F. On November 3, 2015, the Plaintiff appealed and filed a request for adjudgment with the Director of the Tax Tribunal. However, the Director of the Tax Tribunal rejected the said request on the ground that the period of appeal is unlawful, inasmuch as it is not verified that the instant disposition or the instant seizure disposition is null and void on April 5, 2015.

Each entry in Gap's evidence (including a serial number, if any; hereinafter the same shall apply) and the whole purport of the pleading, and each entry in Gap's evidence (including a serial number, if any; hereinafter the same shall apply) and the whole purport of the pleading.

2. The assertion and judgment

A. The plaintiff's assertion

For the following reasons, the Plaintiff sought confirmation of invalidity of the attachment disposition of this case, and sought confirmation that the omission that the Defendant did not commission the registration of cancellation in order to release the attachment of the seized land of this case was illegal.

1) The Plaintiff’s denial BB sold each parcel of land listed in the separate sheet No. 1 and acquired profits therefrom without permission. The Defendant violated the substance over form principle and imposed the instant disposition and imposed the seizure on the Deceased. As such, the instant seizure disposition is null and void (hereinafter “instant No. 1”).

2) There is no transfer margin if each land listed in the separate sheet No. 1 transferred by the deceased is calculated by applying the same standard market price at the time of transfer and the time of acquisition pursuant to Article 100(1) of the Income Tax Act. Nevertheless, the Defendant imposed and notified transfer income tax after calculating the transfer margin of processing, and seized the seized land, the seizure disposition of this case is null and void (hereinafter referred to as “section No. 2”).

3) Since the instant attached land has been subject to a provisional registration for the right to claim transfer of ownership on the ground of pre-sale from eight (8) years prior to the Defendant’s seizure, it is a property provisionally registered prior to the statutory due date of capital gains tax imposed by the Defendant pursuant to the proviso of Article 35(2) of the Framework Act on National Taxes. Thus, the period of extinctive prescription of the right to collect capital gains tax from May 11, 1998, which is the day following the expiration date of the extinctive prescription of the right to provisional registration, should be the starting date of extinctive prescription of the right to collect capital gains tax. Therefore, since the Defendant’s right to collect capital gains tax that

4) The instant attachment disposition becomes null and void, and the Defendant immediately release the instant attachment pursuant to Article 53(1) of the National Tax Collection Act. As such, the Defendant’s omission, which the Defendant did not request the relevant government agencies to register the cancellation of attachment by submitting a report of cancellation of attachment pursuant to Article 54(2) of the National Tax Collection Act (hereinafter “instant Chapter 4”).

B. Relevant statutes

Attached Form 3 shall be as listed in attached Table 3.

C. Whether the part of a claim for confirmation of illegality of omission is legitimate without requesting the relevant government agency to register cancellation of attachment

1) The defendant's main defense

The defendant asserts that the part of the plaintiff's claim for confirmation of illegality of omission is unlawful, since the plaintiff does not have any legal or logical right to request the government agency concerned to request the registration of cancellation of attachment, and there is no legal interest to seek confirmation of illegality of omission.

2) Determination

A) A lawsuit seeking confirmation of illegality of omission under Article 4 subparag. 3 of the Administrative Litigation Act is a system with the purpose of removing a passive state of omission or non-compliance by promptly responding to an administrative agency by confirming that the omission is illegal if the administrative agency fails to comply with a legal obligation to respond to a request based on a party’s legal or sound right within a reasonable period of time despite the existence of a legal obligation to respond to such passive disposition, such as accepting, rejecting, or rejecting, an application based on the party’s legal or sound right. Such a lawsuit is filed only by a person who has filed a request for a disposition and has legal interest in seeking confirmation that the omission is illegal. Thus, in cases where the party does not have a legal or sound right to request an administrative agency to issue a certain administrative disposition, or where there is no legal interest in seeking confirmation of illegality of omission, the lawsuit seeking confirmation of illegality of omission cannot be deemed unlawful omission, or where there is no legal interest in seeking confirmation of illegality of omission

B) In light of the above, Article 53(1)1 of the National Tax Collection Act provides that the head of a tax office shall immediately release the attachment in cases where the attachment is no longer necessary due to payment, appropriation, suspension of public sale, cancellation of the attachment, or other reasons. In the case of paragraph (1), Article 54(2) of the same Act provides that "in cases where the attachment was registered, the head of a tax office shall request the government agency concerned to cancel the attachment along with the record of cancellation of attachment." Thus, if the Defendant does not need to seize the seized land pursuant to Article 53(1)1 of the National Tax Collection Act, it is not obliged that the Defendant shall entrust the government agency concerned with the cancellation registration along with the record of cancellation of attachment concerning the instant attached land. In addition, it cannot be seen that the extinctive prescription of the right to collect the national tax on the deceased's transfer income tax, or that the attachment disposition in this case cannot be seen as null and void, with the record of attachment in this case attached to the government agency concerned. Therefore, it cannot be viewed that the Defendant's right to request the cancellation of attachment in accordance with the record.

D. Determination on the claim to nullify the attachment disposition

1) Relevant legal principles

In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect violates the important part of the relevant law and is objectively apparent. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the relevant law should be examined from a teleological perspective, and at the same time, reasonable consideration should be made on the specificity of the specific case itself (see, e.g., Supreme Court en banc Decision 94Nu4615, Jul. 11, 1995; Supreme Court Decision 2006Du330, Mar. 16, 2006). In an administrative litigation seeking the invalidity of an administrative disposition by asserting the void as a matter of course, the Plaintiff is liable to assert and prove the reason why the administrative disposition is null and void (see, e.g., Supreme Court Decision 91Nu6030, Mar. 10, 192)

2) Whether the instant disposition and seizure disposition are invalid as they violate the substance over form principle

However, the following facts are sufficient to acknowledge the Plaintiff’s assertion that the instant disposition was against the substance over form principle, even though CCC acquired all profits from the transfer of each land listed in the separate sheet Nos. 1 through 3, 5 through 8, 13, 14, 16, 18, and 24, solely on the basis of each of the records in the separate sheet No. 1 through 3, 5 through 8, 14, 16, and 18 through 24. The Plaintiff’s assertion on this part is without merit.

3) Whether the disposition of this case and seizure disposition of this case are null and void in the calculation method of transfer margin

However, there is no evidence to acknowledge that each land listed in the separate sheet Nos. 1 through 3, 7, 8, 13, 14, 16, 18 through 24 is subject to taxation of this case. There is no evidence to acknowledge otherwise. Even if each land listed in the separate sheet No. 1 falls under land subject to taxation of this case, there is no evidence to acknowledge that the Defendant calculated gains from transfer by applying the value of each land listed in the separate sheet No. 1 as either the standard market price or the actual market price, whichever is the date of transfer under Article 10(1) of the Income Tax Act. Therefore, the transfer value of land listed in the separate sheet No. 1 listed in the same principle under Article 100(1) of the Income Tax Act shall be calculated by applying the standard market price around August 16, 1995, and the acquisition value of the above land shall be calculated by applying gains from transfer to the standard market price around July 3, 199, the transfer value of land listed in the separate sheet No. 1 (2) shall be accepted.

4) Whether the instant attachment disposition is null and void upon expiration of extinctive prescription of the right to collect national tax

However, Article 27 (1) 2 of the Framework Act on National Taxes provides that the extinctive prescription shall expire if it is not exercised for five years from the time it can be exercised. Article 28 (1) 4 of the same Act provides that the extinctive prescription under Article 27 of the same Act shall be interrupted due to the seizure. However, as seen earlier, the fact that the Defendant issued the instant disposition upon the payment deadline on December 31, 1996 and January 31, 197, on the other hand, although the Defendant seized the instant attached land on March 17, 1997 and December 31, 1997, it shall be deemed that the extinctive prescription of the right to collect national taxes against the Deceased was suspended from the time of seizure until then.

In a case where the plaintiff attaches property provisionally registered prior to the statutory due date of capital gains tax imposed by the defendant pursuant to the proviso to Article 35 (2) of the Framework Act on National Taxes, the statutory due date of the right to collect national taxes shall be calculated from the day following the starting date of the statutory due date of the right to collect national taxes. Thus, the right to collect national taxes, which is recognized under Article 35 of the Framework Act on National Taxes, refers to the effect of collecting national taxes prior to other public charges or other claims in the procedure of compulsory refund, such as compulsory execution, auction, and disposition on default against the taxpayer's property (see, e.g., Supreme Court Decision 96Da17424, Oct. 15, 1996). However, under the proviso to Article 35 (2) of the same Act, the above provision does not relate to the starting date of the statutory due date of the right to collect national taxes based on the seizure. Meanwhile, Article 27 (2) of the Framework Act on National Taxes provides that the statutory due date of the provisional seizure or provisional disposition is void.

3. Conclusion

Therefore, the part of the claim for confirmation of illegality of omission in the lawsuit of this case is unlawful and dismissed, and the remaining claims of the plaintiff are dismissed without any justifiable reasons. It is so decided as per Disposition.