Seocho 2018west 3329 ( October 24, 2018)

Claim for reduction of additional dues by annual installments cannot be considered as the object of claim for correction.

The claim for correction can be made when the tax base and tax amount exceed the tax base and tax amount to be reported, or even if the plaintiffs' claim for correction, there is no change in the tax base and tax amount, so the additional payment by annual installments cannot be viewed as the object of

Article 45(2) (Request for Rectification, etc.)

2018Guhap71908 Revocation of Disposition rejecting to correct gift tax

ParkA et al. 2

BB Head of tax office et al.

February 28, 2019

April 4, 2019

1. All of the instant lawsuits are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

[Disposition by Notice] The head of Defendant AA Tax Office 20 】. 】. 】. 】 The head of Defendant AA Tax Office 】. 】 additional dues by annual installments for Plaintiff B ParkA 】 】 (Disposition refusal to correct the members and payment by annual installments for Plaintiff B, respectively.

Additional dues ¡¿ The disposition rejecting the correction of the Council members shall be revoked.

[Preliminary Claim] Defendant Republic of Korea shall pay to Plaintiff Parkh-A 】 (the plaintiff x the plaintiff x the plaintiff 】 the plaintiff 】 the amount 】 1.8% per annum from March 19, 2018 to the delivery date of a copy of the complaint of this case 】 】 the amount with 15% per annum from the next day to the day of complete payment, and the next day to the day of complete payment x the plaintiff stuff 】 】 】 the plaintiff 】 】 the plaintiff 】 】 】 】 】 】 】 】 20 】 】 】 】 】. 】 】 (1.8% per annum and 15% per annum from the next day to the day of complete payment).

1. Details of the disposition;

A. Of the outstanding shares ofCC high-speed, Plaintiff Park Young-chul received 529,847 shares, and Plaintiff Park Young-B received 453,097 shares, respectively, from Park Nam-soo, on April 8, 2015. On July 13, 2015, the Plaintiffs filed an application for annual payment pursuant to Article 71(1) of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”) for the remainder of the tax amount excluding the initial tax due, upon filing a tax base return on gift tax with the head of the tax office of distribution on July 13, 2015. The head of the tax office of distribution of Defendant by applying the annual payment rate of 2.5% per annum as stipulated in Article 19-3 of the former Enforcement Rule of the Framework Act on National Taxes (Amended by Ordinance of the Ministry of Strategy and Finance No. 543, Mar. 7, 2016; hereinafter the same) to the Plaintiffs as indicated below.

(unit: source)

Classification

The payment date

Annual payment tax amount

Annual Payment Additional Charges

Total amount paid

Park AA

Initial Payment

20 ¡¿ (3) 】

】 】】

】 】】

】 】】

First Instance

20 ¡¿ (3) 】

】 】】

】 】】

】 】】

Second Session

20 ¡¿ (3) 】

】 】】

】 】】

】 】】

3rd

20 ¡¿ (3) 】

】 】】

】 】】

】 】】

Fourth Session

20 ¡¿ (3) 】

】 】】

】 】】

】 】】

5th Session

20 ¡¿ (3) 】

】 】】

】 】】

】 】】

Total

】 】】

】 】】

】 】】

ParkB

Initial Payment

20 ¡¿ (3) 】

】 】】

】 】】

】 】】

First Instance

20 ¡¿ (3) 】

】 】】

】 】】

】 】】

Second Session

20 ¡¿ (3) 】

】 】】

】 】】

】 】】

3rd

20 ¡¿ (3) 】

】 】】

】 】】

】 】】

Fourth Session

20 ¡¿ (3) 】

】 】】

】 】】

】 】】

5th Session

20 ¡¿ (3) 】

】 】】

】 】】

】 】】

Total

】 】】

】 】】

】 】】

B. On July 1, 2016, around July 1, 2016, the director of the tax office having jurisdiction over the first and second installment payments made notification to the Plaintiffs on July 1, 2017. Accordingly, the Plaintiff Park Jong-A paid both the first and second installment payments and the second installment payments.

C. After that, the plaintiffs asserted that the interest rate of the additional dues for annual installments applied when calculating the additional dues for annual installments after the revision of Article 19-3 of the former Enforcement Rule of the Framework Act on National Taxes was changed, and that the additional dues should be calculated again according to the changed interest rate. On November 24, 2017, the defendant distribution office rendered a request for correction (hereinafter referred to as the "request for correction of this case") to seek reduction and refund of the amount paid in excess of the additional dues for annual installments (the plaintiff Park ParkbbB 178,924,493 won, plaintiff Parkb 152,417,87 won) to the head of the tax office having jurisdiction over the payment of the additional dues for annual installments. However, on December 14, 2017, the head of the tax office rendered a decision refusing to apply the changed interest rate on the ground that the interest rate for the additional dues for annual installments was for calculating the future amount at the time of permission for annual installments (hereinafter referred to as the "decision refusing this case").

D. The Plaintiffs were dissatisfied with the instant refusal decision and filed an appeal with the Tax Tribunal on February 20, 2018, but the Tax Tribunal rejected the appeal against Plaintiff ParkB on April 23, 2018, and the appeal against Plaintiff Park Jong-A on May 9, 2018, respectively. [Grounds for recognition] There is no dispute, and the entries in subparagraphs A through 6, A, and B, and B, as well as the purport of the entire pleadings, and the purport of the entire pleadings.

2. Determination on the defendants' main defense

A. The part of the main claim in the lawsuit of this case

1) The head of the tax office’s defense against the principal safety of the defendant

Since the additional dues for annual installments claimed by the plaintiffs are irrelevant to the "tax base and tax amount under Article 45-2 (1) of the Framework Act on National Taxes", they cannot be viewed as the subject of a request for correction. Therefore, the decision of rejection of this case does not constitute a rejection disposition subject to an appeal litigation, and therefore, the primary claim part of

2) Relevant statutes

It is as shown in the attached Form.

3) Determination

Since the tax authority has no obligation to decide or correct the tax base and the amount of tax or to take a disposition of refusal with respect to an illegal request for correction, it cannot be viewed as a rejection disposition subject to appeal litigation on the ground that the tax authority rejected such correction.

In light of the following purport of the annual payment system, permission for payment by annual installments, validity of the tax payment notice based thereon, and the language and text of Article 45-2(1) of the Framework Act on National Taxes, the Plaintiffs’ request for correction of this case to seek reduction and refund of additional dues by annual installments is inappropriate since it does not request correction of the “tax base and tax amount” stipulated in Article 45-2(1) of the Framework Act on National Taxes. Thus, the decision of refusal by the head of the tax office of distribution by Defendant does not constitute

Therefore, the main part of the lawsuit of this case is illegal, and the main part of the lawsuit of this case is with merit.

A) Under the annual payment system of gift tax, there are many cases where the amount of tax is large, and the acquisition property is also necessary for realization of real estate, etc. In such cases, if the principle for lump-sum payment is maintained on the basis of the convenience of collection only, the taxpayer would bear an excessive burden, and depending on such cases, it would result in compelling the taxpayer to dispose of the property donated within the short period of payment, thereby undermining the basic livelihood of taxpayers. Therefore, the purpose of the system is to provide taxpayers with benefits for installment payment and the grace period to the extent that it does not harm national tax revenue (see, e.g., Supreme Court Decisions 91Nu9374, Apr. 10, 1992; 2007Du18284, Feb. 25, 2010).

B) In the case of gift tax, liability for payment by annual installments is a final and conclusive tax assessment by a tax assessment that determines and notifies the tax base and the amount of tax, and thereafter, permission for annual installments does not change the tax liability and the payment deadline per se determined by the original disposition on imposition of gift tax, and a tax payment notice on the gift tax that has been permitted by annual installments is not a change in the rights and obligations of a taxpayer already imposed on the taxpayer (see, e.g., Supreme Court Decision 9Da22311, Nov. 27, 2001).

C) According to Article 72 of the Inheritance Tax and Gift Tax Act, a person who received permission for payment by annual installments shall pay the total tax amount permitted for the first installment payment by the rate prescribed by Presidential Decree for the number of days from the day following the due date for payment by the due date for payment or the due date for payment by the due date for payment by the payment by the annual installment payment. In other cases, with respect to the balance obtained by subtracting the aggregate amount of the tax amount paid by the annual installment payment from the total tax amount permitted for the payment by annual installment payment to the immediately preceding installment payment by the rate prescribed by Presidential Decree for the number of days from the day following the due date for the immediately preceding installment payment to the due date for the payment by the due date for payment by the due date for payment by the annual installment payment, and as such, if the total tax amount permitted for the payment by annual installment is determined, it shall be determined by the number of days prescribed in Article 72 of the Inheritance Tax and Gift Tax Act and Article 69 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 26960, Feb. 5, 2019).

D) According to Article 45-2(1) of the Framework Act on National Taxes, a person who has filed a tax base return by the statutory due date of return may request the determination or correction of the tax base and tax amount initially filed, when the tax base and tax amount to be reported under the tax-related Acts (referring to the tax base and tax amount after the determination or correction is made, in cases where the determination or correction is made pursuant to the relevant tax-related Acts), exceeds the tax base and tax amount to be reported under the tax-related Acts, or the deficiencies or tax amount to be reported under the tax-related Acts are short of the deficiencies or tax amount to be reported under the tax-related Acts. However, even according to the Plaintiffs’ written request for correction of this case (Article A evidence 4-1, 2-2), there is no change in the tax base and tax amount, and the additional tax for annual payment cannot be the subject of a request for correction. Accordingly, it

B. Part of the conjunctive claim in the instant lawsuit

1) As long as Defendant Republic of Korea’s main defense is unlawful in the lawsuit of this case, the conjunctive claim, which is a consolidated related claim, is also unlawful.

2) Since the consolidation of related claim lawsuits under Article 10 of the Administrative Litigation Act requires that the original revocation lawsuit be lawful, if the original revocation lawsuit is dismissed on the grounds that it is unlawful, the combined claim shall also be dismissed as it does not satisfy the requirements of lawsuit (see, e.g., Supreme Court Decision 95Nu13708, Mar. 14, 1997). As seen earlier, insofar as the part of the claim for revocation of the decision of refusal of the instant conjunctive claimant among the instant lawsuit is unlawful, the part of the claim for the payment of refund of the instant conjunctive claimant, which was joined thereto, is also unlawful because the part of the claim for the payment of refund of the instant conjunctive claimant, which was unlawful

3. Conclusion

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