Appellate Court Decision 201J2644 ( November 21, 2011)

The deferred correction of capital gains tax without payment is merely a collection disposition and does not constitute a revocation lawsuit.

The portion seeking cancellation of the transfer income tax is illegal because it is merely a collection disposition for collecting the amount of tax that added the additional tax to the transfer income tax reported by the taxpayer, and it cannot be seen as a taxation subject to revocation lawsuit. The portion seeking cancellation of the remaining additional tax is illegal because it does not go through legitimate pre-

2012Guhap8444 Revocation of Disposition of Imposing capital gains tax

KimA

hill of the tax office

April 2, 2013

April 23, 2013

1. The instant lawsuit shall be dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of 000 won against the Plaintiff on August 10, 2012 is revoked (the amount notified until August 31, 2012, the due date of payment, is KRW 000, and the aggregate of KRW 000,000, and the increased additional tax is paid by October 31, 2012, when it is paid within one month after the due date of payment, and KRW 00,000).

1. Basic facts

가. 원고는 2012. 3.경 원고 소유인 강릉시 OO면 OO리 000 답 760㎡， 같은 리 0000 답 36㎡， 0000 전 810㎡(이하 '이 사건 각 부동산'이라고 한다)를 권BB에게 매매대금 000 원에 매도하고 같은 달 29. 권BB 앞으로 소유권이전등기를 마쳐 주었다.

B. On April 20, 2012, the Plaintiff filed voluntary declarations by stating to the Defendant the calculated capital gains tax amount of KRW 000 in relation to the transfer of each of the instant real property, as the reduced or exempted tax amount following the transfer of self-farmland, and as the tax amount to be paid the remaining KRW 000 (=00 - 000 won).

C. However, the Plaintiff did not pay the above KRW 000 to the Defendant, and on August 10, 2012, the Defendant decided and notified the Plaintiff of KRW 000,000, totaling the above KRW 000 for additional payment for arrears (hereinafter “instant disposition”).

[Reasons for Recognition]

Facts without dispute, Gap evidence 1, Eul evidence 1, 2, and 3, and the whole purport of the pleading

2. Whether the lawsuit of this case is lawful

A. Summary of the defendant's assertion

The instant disposition is unlawful since it is a collection disposition for the quota of the already determined tax, and it is not a taxation subject to the revocation lawsuit, and since the Plaintiff did not go through legitimate procedures for the instant disposition, the instant lawsuit is unlawful.

B. Determination

(1) From the first transfer after January 1, 200, capital gains tax is converted by the tax return method, and the taxpayer is obligated to pay the tax amount determined at the time of filing the tax base and tax amount, and it is merely a final tax collection disposition for the collection of the tax, and it cannot be deemed as a tax disposition subject to the revocation lawsuit, where the taxpayer did not pay the tax amount without any correction as to the reported matters by the tax authority because the taxpayer did not pay the tax base and tax amount (see, e.g., Supreme Court Decision 2003Du8180, Sept. 3, 2004).

(2) In addition, a person whose rights or interests are infringed upon due to the dispositions under the relevant Acts and subordinate statutes, such as Article 5(1), (3), and Article 56(2) and (3) of the Framework Act on National Taxes, and the dispositions under the tax-related Acts and subordinate statutes, may request a cancellation or modification of the dispositions, or for a necessary disposition, and, prior to a request for examination or adjudgment, an administrative litigation against the unlawful disposition may be filed with the director of the competent regional tax office before the request for examination or adjudgment, but, notwithstanding the main sentence of Article 18(1) and Article 18(2) and (3) of the Administrative Litigation Act, an administrative litigation against the defendant cannot be filed with the Commissioner of the National Tax Service through a request for examination under Article 61 of the Framework Act on National Taxes (within 90 days after the date when the relevant disposition is known) and the request for adjudgment (within 90 days after the date when the request for examination is filed to the Tax Tribunal) and without going through the procedure of the preceding trial, for which the request for examination has not been made.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it without examining any further on the merits. It is so decided as per Disposition.