The defendant's disposition shall not be deemed to be null and void as a matter of course.

Even if the defendant's error of law is found to be erroneous, it can only be found that the facts should be accurately examined, and it can not be said that the defect is apparent.

Article 114 of the Income Tax Act shall be determined, corrected and notified on the tax base and amount of tax for transfer income.

2018Gudan12719 Nullification of a disposition imposing capital gains tax

○ ○

○ Head of tax office

o April 3, 2019

May 1, 2019

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant confirms that the imposition of capital gains tax of KRW 23,883,750 against the Plaintiff on January 5, 2015 is null and void (it is a clerical error in writing on January 15, 2015).

1. Details of the disposition;

A. On February 10, 2014, the Plaintiff agreed to sell the instant land (hereinafter referred to as “instant land”) to 50 million won in the lower-nam City forest (hereinafter referred to as “instant land”) on the date of payment of 2 million won the down payment, and on May 10, 2014, the remainder 48 million won was agreed to be paid by △△△△ on May 10, 2014.

B. On February 18, 2014, the Plaintiff: (a) filed a registration for the transfer of ownership with respect to the instant land on the ground that the transfer of the instant land was completed on January 15, 2015; and (b) the Defendant imposed and notified KRW 23,883,750 (including additional tax) for the transfer income tax reverted to year 2014 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

After the contract of this case, △△△ did not pay any balance, and as a result, the Plaintiff cancelled the contract of this case on May 20, 2015 and cancelled the registration of transfer of ownership to the land of this case. The disposition of this case, which was made on the premise of the existence of capital gains under the contract of this case, is null and void.

B. Determination

(1) In a case where a seller cancels or cancels a sales contract by failing to perform a buyer’s obligation to pay the purchase and sale price in advance while concluding a sales contract on real estate, the disposition imposing capital gains tax on the premise that the seller has income from the transfer of the seller is unlawful (see, e.g., Supreme Court Decisions 86Nu916, May 12, 1987; 2001Du5972, Sept. 27, 2002).

Meanwhile, in general, a taxation disposition made on a person who does not have any factual relation, such as the legal relation, income, or act, which is subject to taxation, is significant and apparent, but in case where there are objective circumstances that could mislead him to be subject to taxation with respect to any legal relation or factual relation which is not subject to taxation, if it is possible to accurately investigate the factual relation, whether it is subject to taxation or not, cannot be said to be apparent even if the defect is serious, and thus, it cannot be deemed as an unlawful taxation disposition that misleads the fact subject to taxation, as such, cannot be deemed as a rightful invalidation (see, e.g., Supreme Court Decision 2001Du7268, Sept. 4, 2002). Furthermore, in an administrative litigation seeking the invalidity of an administrative disposition, the Plaintiff is liable to assert and prove that the defect existing in such administrative disposition is significant and apparent (see, e.g., Supreme Court Decision 82Nu154, Feb. 28, 1984).

(2) Therefore, the following circumstances acknowledged by the above evidence, i.e., (i) the Defendant, on February 18, 2014, issued the instant disposition based on the objective circumstance that the transfer was completed by completing the registration of ownership transfer of the instant land in the name of △△△△, ② the Plaintiff expressed his/her intent to rescind the instant contract only after January 15, 2015, which was the date of the instant disposition, was issued on May 20, 2015; (iii) the Plaintiff was able to dispute the instant contract at the time of the instant disposition, but did not appeal it for a long time; (iv) the instant contract was concluded without a broker; and (v) the payment period of the remainder was up to May 10, 2014; and (v) notification of the termination of the contract after the instant disposition was made is sufficient to doubt the authenticity of the cancellation; and therefore, it is not clear that the Defendant had any objective reason to determine that the instant contract was subject to taxation, even if there was an objective error.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.