Seoul Administrative Court-2018-Gu Group-61829 ( October 22, 2018)

If it can only be clarified that the facts should be accurately examined, the plaintiffs' report of capital gains tax cannot be deemed to be null and void per annum.

The issue of whether the registration of inheritance sharing is invalid can be clarified only when the facts are accurately examined, and the registration of inheritance shares by inheritance by subrogation of the creditor at the time of the taxation disposition was valid, and the registration of revision of the registration of inheritance was made after the taxation disposition, and it cannot be deemed that the taxation was void

2018Nu6299 Ascertainment of invalidity of a disposition imposing capital gains tax

AA and 2

BB Head of tax office et al.

October 18, 2018

November 8, 2018

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

the Gu Office's place of service and place of service

The judgment of the court of first instance is revoked. Defendant JB director’s disposition of KRW 10,422,860 for the transfer income tax for the year 2017 imposed on Plaintiff A on Plaintiff BA on January 5, 2018, Defendant BB director’s disposition of KRW 2,931,180 for the transfer income tax for the year 2017 imposed on Plaintiff CCC, and imposition of KRW 35,170 for additional tax for the year 2,931,180 for the transfer income tax for the year 2017, and Defendant BB director’s disposition of KRW 2,931,180 for the transfer income tax for Plaintiff BD on May 10, 2017, confirming that each disposition of KRW 62,430 for additional tax for the year 2017 for the transfer income tax for Plaintiff BD is invalid (the Plaintiff’s claim was corrected as above in this court).

1. Details of the tax payment notice and tax imposition disposition of this case

A. Report on the transfer of apartment of this case and transfer income tax

1) The Plaintiff is the spouse of the Z, and the Plaintiff CCC and DD are children between the Plaintiff AA and the Z.

2) On June 17, 200, GG HH Dong 1383, HHdong 1383 (hereinafter “instant apartment”) acquired and owned grix apartment 2, 801, and died on August 27, 2003.

3) On October 6, 2003, the Plaintiffs jointly inherited the net ZZ in the proportion of 3/7 of the Plaintiff AA, the Plaintiff CCC, and DD, respectively, and the ownership transfer registration based on inheritance by inheritance shares was completed from the net ZZ on October 6, 2003 with respect to the instant apartment.

4) On January 2, 2017, the Plaintiffs, together with the instant apartment, transferred the instant apartment to a third party at KRW 344 million (hereinafter “instant transfer”).

5) On February 27, 2017, the Plaintiffs filed a return of capital gains tax (hereinafter “the instant report”) with Defendant BB head of the tax office on the transfer of the instant case as shown in the separate sheet, but did not pay capital gains tax.

B. Notice of tax payment and disposition of tax imposition in the instant case

1) Imposition of transfer income tax and additional tax on Plaintiff AA

A) On May 10, 2017, Defendant J Director of the J Tax Office additionally imposed KRW 5,124,270 on the transfer income tax amount reported by Plaintiff AA in relation to the instant transfer, and notified the said Plaintiff to pay KRW 5,185,760 for the additional additional tax on KRW 61,490.

B) As the acquisition value of Plaintiff JA is not KRW 84,179,065, not KRW 55,036,208, which was reported at the time of filing the instant transfer income tax, the Defendant re-calculated the transfer income amount. Accordingly, on January 5, 2018, the said Defendant notified the said Plaintiff that the transfer income tax for year 2017 should be additionally paid KRW 10,422,860 (= principal tax amount of KRW 9,602,845 + penalty tax of KRW 47,856 + penalty tax of KRW 47,856 + penalty tax of KRW 372,168, and penalty tax of less than KRW 10) + penalty tax of KRW 5,237,100 (total determined tax amount of KRW 10,422,860 – tax amount of KRW 5,185,760).

2) Notice of payment of capital gains tax and imposition of additional tax on Plaintiff CCC and DD

In relation to the transfer of this case on May 10, 2017, Defendant BB head of the tax office notified Plaintiff CCC to pay KRW 2,966,350 as transfer income tax for the year 2017 (i.e., principal tax + KRW 2,931,180 + KRW 35,170) by additionally imposing KRW 2,931,180 as transfer income tax for the year 2017. On the same day, the Defendant notified Plaintiff DD to pay KRW 2,93,610 as transfer income tax for the year 2,93,610 (= principal tax for the year 2,931,180 + KRW 62,430). The Defendant notified Plaintiff DD to pay KRW 2,93,610 as transfer income tax for the year 2017.

C. Details of registration of housing ownership in the name of Plaintiff AA before and after the transfer of the instant case

At the time of the transfer of this case, the registration of ownership was completed with respect to a house other than the apartment of this case in the name of the plaintiff AA. After the report of this case, the plaintiff AA was not the owner of the house and the previous registration of ownership was corrected. The reasons are as follows.

1) MM (Plaintiff AA’s mother, Plaintiff CCC, and DD’s outer money) died on December 10, 1998.

2) At the time of death, MM owned 229.395/30 of the 309.64 of the 1st, 101, 201, 201, and 301 of the 3rd and upper floors (hereafter in this Article, referred to as “LL house shares” in total) of the 4rd and upper floors among the land and its ground buildings in Dobong-gu Seoul Metropolitan Government LL 460-360 and its ground buildings.

3) After that, on July 28, 2004, the registration of transfer of ownership was completed on the ground of "the inheritance on the date of December 10, 1998" by each statutory inheritance share upon the application by the deceased MM's heir, including the plaintiff AA, for the subrogation by the National Bank of Korea, Co., Ltd. (hereinafter collectively referred to as "registration of inheritance on the date of July 28, 2004").

An inheritor

Equity Holdings

AA

1123.43/19

이QQ

1123.43/19

W

1123.43/19

KimE

481.47/46

RR

320.98/320

ICT

320.98/320

Consolidateds

4493.72/40

4) 그런데 LLL 주택 지분에 관하여 이 사건 신고, 피고들의 납세 고지 및 과세처분 후인 2018. 3. 15. 망 MMM으로부터 이QQ 앞으로 '2018. 2. 7.자 상속재산 분할협의'를 원인으로 한 단독소유권이전등기가 이루어지는 내용으로 2004. 7. 28.자 상속등기에 관한 경정등기가 마쳐졌다.

(In fact that there is no dispute, Gap evidence 1 through 8, Eul evidence 1 and 2 (at least 1)

the purpose of each entry, as a whole, of the entire pleadings, including branch numbers

2. Summary of the plaintiffs' assertion

원고들은 이 사건 양도 당시 이 사건 아파트 이외에는 아무런 주택을 소유하고 있지 아니하였다. 즉, 이 사건 양도 당시 원고 AAA 명의로 마쳐져 있던 LLL 주택 지분에 관한 공유등기는 원고 AAA의 의사와 무관하게 마쳐져 있었던 것으로 무효의 등기이다. 망 MMM의 상속인들이 2018. 2. 7.자 상속재산 분할협의를 통하여 LLL 주택 지분에 관하여 망 MMM으로부터 이QQ 단독 명의로 소유권이전등기를 하는 내용으로 경정등기까지 마쳤으므로, 원고 AAA이 이 사건 양도 당시 LLL 주택 지분을 공유하고 있었다고 볼 수는 없다.

Therefore, the transfer of this case constitutes a single house non-taxable object for one household, and thus, each imposition and notification of the instant report and purport of the claim made on a different premise is null and void as a matter of course.

3. Determination

A. As to Defendant BB’s defense prior to the merits of the tax office

1) Summary of the defense prior to the merits

Of the notice of tax payment of Plaintiff CCC and DD on May 10, 2017, the respective tax amount of KRW 2,931,180 in each of the instant tax payment notice constitutes a collection disposition for the collection of capital gains tax finalized in accordance with the said notification, and does not constitute a disposition that is subject to administrative litigation, merely constitutes a disposition for the collection of capital gains tax finalized in accordance with the said notification. Of the instant lawsuit, the part seeking confirmation of invalidation of the tax payment notice

2) Determination

With respect to this part of the judgment of the court of first instance, the reasons for this Court are as follows: “Plaintiffs” portion of 6th 13 lines on the ground of the judgment of the court of first instance, “Plaintiffs” portion of 6th 14th 6th 14th 6th 6th 6th 6th 6th 17th 6th 17th 6th 17th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th

B. Judgment on the merits

1) As to the taxation of the Plaintiff AA by the Head of JJ Tax Office

A tax disposition imposed on a person who does not have any legal relation or factual basis subject to taxation shall be deemed to have a significant and apparent defect. However, in a case where there are objective grounds to believe that a certain legal relation or factual basis which is not subject to taxation is subject to taxation, and where it can only be found that the factual basis should be accurately examined, if it is apparent whether it is subject to taxation, it cannot be deemed that the unlawful taxation disposition that misleads the person about the fact subject to taxation cannot be deemed as null and void, even if the defect is grave even if it is apparent (see Supreme Court Decision 200Da24986, Jul. 10, 200).

In light of the following facts: (a) the registration of co-ownership of LL housing shares that was completed in the future in the Plaintiff AA at the time of the instant transfer was made by subrogation by the obligee, and was effective at the time of the Defendant JJ head’s tax office’s tax disposition on January 5, 2018; and (b) the registration of rectification of the registration of inheritance was made on March 15, 2018 on the ground of an agreement on division of inherited property as of February 7, 2018, which was the date of the said Defendant’s above tax disposition; and (c) in light of the fact that the said registration was made on March 15, 2018, the said tax disposition against the Plaintiff AA by the chief of the JJ head of

2) As to Defendant BB’s notice and taxation as to Plaintiff CCC and DD by the director of the tax office

In the case of taxes that are adopted by the method of tax payment, in which the taxpayer's filing act is deemed to have become final and conclusive by the taxpayer's filing of a return, and the tax authority orders the performance thereof, even if there is a defect in the taxpayer's filing of a return, such defect shall not be succeeded to the disposition of tax collection, which is the subsequent disposition, unless the defect falls under the grounds for invalidation. For the taxpayer's filing of a return to be null and void automatically, the defect shall be significant and apparent, and whether it falls under this case shall be determined reasonably by considering the purpose, significance, function, and legal remedy for the defective filing of a return, etc., of the laws and regulations, which are the grounds for the filing of the report, and by individually identifying and determining the specific circumstances arising from the filing of the report (see Supreme Court Decision 2005Du14394, Sept.

In light of the above legal principles, the co-ownership registration of LLL Housing shares, which was completed in the future of Plaintiff AA at the time of the instant transfer, was effective at the time of the instant report, and the rectification registration of inheritance registration was made after the instant report, the instant transfer income tax report filed by Plaintiff CCC and DD cannot be deemed as null and void as a matter of course. Accordingly, it cannot be deemed that Defendant BB head of the tax office’s notice of tax payment and imposition of additional tax on the above Plaintiffs on May 10, 2017 based on the instant report is null and void as a matter of course. The aforementioned Plaintiffs’ assertion is without merit.

4. Conclusion

Since the plaintiffs' claims are without merit, the judgment of the court of first instance shall be dismissed.

Since the plaintiffs' appeal is justified as above, it is dismissed in its entirety due to the lack of grounds.