Appellate Court 2017Ch2847 ( August 23, 2017)

Whether a lawsuit is lawful for which 90 days have passed since the decision on the request for adjudgment was notified.

The original copy of the judgment of this case is recognized to have been served on the plaintiff's domicile by registered mail, and the lawsuit of this case filed after the lapse of 90 days thereafter is illegal as the period for filing the lawsuit is expired.

Article 56 of the Framework Act on National Taxes

2017Gudan36574 Revocation of Disposition of Imposing capital gains tax

AA

BB Director of the Tax Office

March 6, 2018

March 20, 2018

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 imposing capital gains tax of KRW 190,215,650 (including additional tax) for the Plaintiff on March 28, 2017 is revoked (the purport of the disposition is as above).

1. Details of the disposition;

A. On February 8, 1985, the Plaintiff transferred the registration of ownership transfer for reasons of sale on October 5, 201, 1061 ○○○○○○ ○○ ○○ ○○ ○○ ○○ ○61 m2, 3,091 m2, 1063 m2, 1064 m2, 875 m2, 1065 m2, 585 m2, 1065 m2, 1065 m2, 1063, 1065 m2, 1065-1 m2, 1063 m2, 1063 m2, 1063 m2, 1065 m2, 106 m2, 360 m2, 205 m2, 160 m2, 2016.

B. As to this, the Defendant deemed that the transfer of each of the instant lands does not meet the requirements for reduction or exemption of capital gains tax on self-arable farmland under Article 69(1) of the former Restriction of Special Taxation Act, and on March 28, 2017, the Defendant corrected and notified the Plaintiff of KRW 190,215,653 (including additional tax) for the capital gains tax reverted to year 2016 (hereinafter

'The Disposition of this case' was 'the Disposition of this case'.

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on May 23, 2017, but the Tax Tribunal dismissed the Plaintiff’s appeal on August 23, 2017 (hereinafter “instant appeal”).

[Ground of recognition] Facts without dispute, Gap evidence No. 14, Eul evidence No. 2, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

The instant lawsuit is unlawful as it was instituted 90 days after the Plaintiff was notified of the instant decision.

B. Determination

According to Article 56 of the Framework Act on National Taxes, any administrative litigation against any illegal disposition under the Framework Act on National Taxes shall not be filed without making a request for examination or adjudgment under the Framework Act on National Taxes and making a decision thereon (paragraph (2)). In this case, the administrative litigation shall be filed within 90 days from the date the decision on the request for examination or adjudgment is notified (paragraph (3)), which is a peremptory term (paragraph (5)). Meanwhile, according to Article 8(1) of the Framework Act on National Taxes, the documents prescribed under the Framework Act on National Taxes shall be served on the domicile, temporary domicile, place of business or office of the holder of the title (referring to a person designated as the recipient of the documents). According to Article 10 of the same Act, documents under the above Article 8 shall be served by mail or electronic delivery (paragraph (1)), and if documents related to notice of tax payment, demand for payment, disposition on default, or governmental order under tax-related Acts are served by mail, they shall be served by registered mail

employee, other employee, or person living together with the employer, if he/she does not meet his/her requirements;

Documents may be served on a person entitled to make identification (former part of paragraph (4)).

According to the purport of the statement of No. 1 and evidence No. 1 in this case, the original copy of the judgment of this case is served by registered mail at the Plaintiff’s domicile and it can be recognized that Lee-nam, the spouse of this case, received it on September 6, 2017. The fact that the lawsuit of this case was brought on December 8, 2017, which was 90 days after the lapse of 90 days from the lawsuit of this case is apparent in the record. Thus, the lawsuit of this case was filed with the lapse of the period for filing the lawsuit of this case, and the defendant’s main defense

3. Conclusion

Since the lawsuit of this case is unlawful, it is decided to dismiss it and it is so decided as per Disposition.