Examination- Other-2016-046 ( December 27, 2016)

prior to the administrative litigation, a claim may be filed for the revocation of the disposition subject to legitimate prior trial procedures.

If the procedure of a prior trial of a request for examination or a request for trial, etc. is unlawful due to the lapse of the period, an appeal litigation is not sufficient to satisfy the requirements of a prior trial, and thus, is unlawful. This does not change even if an administrative agency rendered a substantive judgment with regard to a request for examination or a request for trial, etc., which is unlawful as to the period of

Article 56 of the Framework Act on National Taxes concerning other Acts

Article 61 of the Framework Act on National Taxes

2017Guhap876 Revocation of Disposition of Imposing income tax, etc.

○ ○

○ Head of tax office

December 14, 2017

February 8, 2018

1. Of the instant lawsuit, the part demanding revocation of each disposition of imposition of global income tax of KRW 229,420, additional dues of KRW 11,470, and additional dues of KRW 11,470, and global income tax of KRW 63,200, additional dues of KRW 3,160, and principal tax of capital gains tax of KRW 6,892,892,890, additional dues of KRW 5,307,240, and additional dues of KRW 5,307,240, and additional dues of KRW 1,268,370, additional dues of KRW 946, and KRW 610, which were notified on December 30, 200.

2. All remaining claims of the Plaintiff are dismissed.

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

Cheong-gu Office

The Defendant’s imposition of global income tax of KRW 229,420, additional tax of KRW 11,470, additional tax of KRW 11,470, and global income tax of KRW 63,200, additional tax of KRW 3,160, and the principal tax of global income tax of KRW 63,200, additional tax of KRW 3,160, and the principal tax of capital gains tax of KRW 6,892,892,890, additional tax of KRW 5,307,240, and additional tax of KRW 5,307,240, and additional tax of KRW 1,268,370, additional tax of KRW 946,610, each of which was notified on December 1, 1996 as of December 1, 199.

The defendant's attachment disposition on the real estate listed in paragraph 1, 2, and 3 of the attached list as of April 11, 2016, the attachment disposition on the real estate listed in Paragraph 4 of the same list as of October 13, 2015, the attachment disposition on the real estate listed in Paragraph 5 of the same list as of June 28, 2001, and the attachment disposition on the real estate listed in Paragraph 6 of the same list as of April 5, 2006, respectively is confirmed to be invalid.

1. Details of the disposition;

A. From August 1, 1999 to December 30, 2000, the Defendant imposed global income tax, transfer income tax and value-added tax (hereinafter collectively referred to as “each of the instant taxes”) on the Plaintiff as listed in the following table (hereinafter collectively referred to as “each of the instant taxes”) on the Plaintiff (hereinafter referred to as “each of the instant dispositions”).

Items of Taxation

Date of Notification

Reversion

Deadline for payment

Principal Tax

Additional Dues

guidance.

Income;

8.01.01

1998

oly 15, 1999

29,420

11,470

240,890

Income;

December 01, 200

1998

December 31, 200

63,200

3,160

66,360

Transfer

December 30, 200

199

oly 15, 2001

6,892,890

5,307,240

12,200,130

Addition

December 01, 200

196.29

December 31, 200

1,268,370

976,610

2,244,980

Total

8,453,880

6,298,480

14,752,360

B. The Defendant: (a) on the ground that the Plaintiff was in arrears with each of the instant taxes; (b) on July 5, 2001; (c) on April 10, 2006, the real estate listed in paragraph (6) of the attached Table No. 4 of the same Table, listed in the same Table No. 13, Oct. 13, 2015; and (d) on April 11, 2016, each of the real estate listed in paragraphs (1), (2), and (3) of the same list owned by the Plaintiff (hereinafter referred to as “each of the instant attachment dispositions”).

C. On June 7, 2016, the Plaintiff filed an objection with the Defendant against the disposition of imposition of capital gains tax for the year 199 and the disposition of seizure as of April 11, 2016 on the real estate listed in attached Tables 1, 2, and 3. The Defendant rejected an objection against the disposition of imposition of capital gains tax for the year 199 on July 18, 2016, and dismissed an objection against the disposition of seizure as of April 11, 2016. The Plaintiff filed an objection against the disposition of imposition of capital gains tax for the year 1999 and the disposition of seizure as of April 11, 2016 with the National Tax Service on the disposition of imposition of capital gains tax for the year 199 and the disposition of seizure as of April 11, 2016. The Commissioner of the National Tax Service rejected or dismissed the Plaintiff’s appeal on December 27, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, Eul evidence Nos. 1 through 5, 6-1 through 3, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate among the lawsuits of this case

A. The imposition of capital gains tax for the 1999

1) The defendant's main defense

The defendant asserts to the effect that in the case of the disposition of imposition of capital gains tax, the tax notice was served on the plaintiff, and that the request for revocation is unlawful because it does not go through legitimate procedure of pre-trial under Article 56 of the Framework Act on National Taxes

2) Determination

First, we examine whether a tax notice of capital gains tax has been lawfully served. The service of a tax notice is to be made by means of domicile, residence, place of business or office pursuant to Article 8(1) of the Framework Act on National Taxes unless there are special circumstances. In this case, if a person to receive a service at the place is not present, it may be served to such employee, other workers, or a person living together with the mental capability to distinguish the person (see, e.g., Supreme Court Decisions 95Nu351, Aug. 11, 1995; 96Da23184, Mar. 18, 199; 96Da23184, Mar. 199). Article 10 of the same Act provides that the service of documents shall be made by delivery or mail (see, e.g., Paragraph (1)), and if a family member intends to serve a tax notice by mail, it shall be made by registered mail (see, e., Supreme Court Decision 200Nu97197, Dec. 197, 197).

With respect to the instant case, the following circumstances, namely, ① the current document related to the service was discarded, or the first payment period, the date of notification, the date of notification, the place of tax payment, etc. are revealed in the computer system at the time of the decision on the collection of capital gains tax, and there is no return details, and the probative value cannot be easily dismissed when compared to the National Tax Service’s computer network and the Plaintiff’s resident registration card, ② the document corresponds to the place of tax payment at the time of the imposition of capital gains tax and the Plaintiff’s resident registration card at the time of the imposition of capital gains tax, ③ the document related to the service is sent by registered mail, and ③ the tax payment notice can be presumed to have been delivered to the Plaintiff or the Plaintiff’s family members at the time of the imposition of capital gains tax. In light of the above circumstances, it is reasonable to deem that the above tax payment notice on capital gains tax was lawfully delivered to the Plaintiff or the Plaintiff’s family members.

Meanwhile, Article 56 (2) of the Framework Act on National Taxes provides that "any administrative litigation against any illegal disposition prescribed in Article 55 shall not be instituted without undergoing a request for examination or adjudgment under this Act and a decision thereon, notwithstanding the main sentence of Article 18 (1), Article 18 (2) and (3) of the Administrative Litigation Act," which provides that "a request for examination or adjudgment under this Act shall be filed within 90 days from the date on which the notice of the relevant disposition is received. However, a request for adjudication on national tax shall be filed within 90 days from the date on which the notice of the relevant disposition is received, and a request for adjudication shall be filed within 90 days from the date on which the notice of the relevant disposition is received (Article 68 of the Framework Act on National Taxes). If the procedure of the preceding trial is unlawful due to the lapse of the period of time, an appeal litigation shall also be deemed inappropriate, and this does not change even if the administrative agency rendered a substantial adjudication with respect to any request for examination or adjudgment that has been unlawful even after the period of the pre-trial procedure is expired (see, e.

The Plaintiff’s petition for adjudication is unlawful as it was filed on June 7, 2016, 90 days after the Plaintiff received a notice of imposition of capital gains tax by lawful service. As such, an unlawful petition for adjudication cannot be deemed a lawful pre-trial procedure that ought to be prior to administrative litigation. As such, the part seeking revocation of imposition of capital gains tax for the year 199 among the instant lawsuit is unlawful as it did not go through a pre-trial procedure

B. The imposition of each global income tax for the year 1998, and the imposition disposition of the value-added tax for the second year 199

The following facts are examined ex officio: (a) the Plaintiff filed a request for a judgment on the imposition of capital gains tax for the year 199 among the respective dispositions of this case (However, the procedure of the previous trial constitutes an unlawful pre-trial procedure; hereinafter the same shall apply); (b) each global income tax for the year 198; and (c) each disposition on the imposition of capital gains tax for the year 1999 was not subject to a pre-trial procedure. However, each of the above dispositions constitutes separate dispositions; and (d) the imposition of capital gains tax for the year 199 and each of the above global income tax for the year 199 and the imposition of value-added tax are conducted in the course of step-by-step and development to achieve the same purpose; and (e) the content of the disposition is related to one another; or (e) there is no common reason to believe that the tax authority changes the taxation disposition subject to the continuation of the tax lawsuit and that there is no reason to deem that the Plaintiff excessively affected the pre-trial procedure in

Therefore, inasmuch as the Plaintiff filed the instant lawsuit without going through the pre-trial procedure with respect to the imposition of global income tax and value-added tax, the part on which the Plaintiff sought revocation of the imposition of global income tax for the year 1998 among the instant lawsuit and the imposition of value-added tax for the second year of 1999 is also unlawful.

3. Whether each of the attachment dispositions in this case is invalid

A. The plaintiff's assertion

Inasmuch as the Plaintiff did not receive a tax notice or demand notice on each of the instant dispositions, and documents on the fact of seizure, taxation dispositions based on the premise that a tax notice or demand notice and a document on the fact of seizure have been duly notified and served is null and void. Accordingly, each of the instant dispositions, which are subsequent procedures, is null and void. In addition, the real estate transferred by the Plaintiff around 200 is not subject to capital gains tax because transfer margin exists, and the remaining tax items, including value-added tax, are not known.

B. Determination

1) The disposition of tax imposition and the disposition of tax arrears are separate administrative disposition, and thus, it cannot be deemed that the disposition of tax arrears is unlawful unless the disposition of tax arrears is revoked. However, if the disposition of tax arrears is merely a procedure for the execution of the disposition of tax arrears and the disposition of tax arrears becomes null and void because it is merely a procedure for the execution of the disposition of tax arrears (see Supreme Court Decision 87Nu383, Sept. 22, 1987). However, the disposition of tax arrears conducted by the disposition of tax arrears cannot be deemed unlawful unless the disposition of tax arrears is revoked (see Supreme Court Decision 88Nu1210, Jul. 11, 1989). Therefore, in order to seek a nullification of the disposition of tax levying, each of the dispositions of this case must have the defects, and in order to seek a invalidity of the disposition of tax levying, the disposition of tax arrears shall be deemed null and void (see Supreme Court Decision 200Du3501, Sept. 22, 1987).

2) First, in light of the circumstances described in Paragraph (a) and (2) there is no evidence to prove that the Plaintiff was unable to receive the above tax payment notice regarding whether to issue the tax payment notice of this case, and there is no evidence to prove that the Plaintiff did not receive the above tax payment notice (see, e.g., Supreme Court Decision 95Nu3282, Aug. 25, 1995). Furthermore, as long as the effect of the tax payment notice, including the transfer income tax for the year 199, was duly served on the Plaintiff or the Plaintiff’s family, the tax payment notice of this case including the transfer income tax for the year 199 should be deemed to have been legally served on the Plaintiff or the Plaintiff’s family. Furthermore, the seizure does not become null and void merely because the Plaintiff did not notify the taxpayer of the seizure when the real estate attachment was completed (see, e.g., Supreme Court Decision

3) Next, with respect to whether the disposition imposing capital gains tax for the year 1999 is null and void on the grounds that there is no capital gains on transfer, etc., the defect of the disposition imposing capital gains tax on a person who does not have any factual basis, such as the legal relation, income, or act, which is generally subject to taxation, shall be deemed to be significant and obvious. However, in a case where there are objective circumstances that make it possible to mislead him/her of any legal relation or factual relation which is not subject to taxation, and where it can only be clarified if it is possible to accurately investigate the factual basis, it cannot be deemed to be apparent even if the defect is serious, and thus, it cannot be deemed that the disposition imposing capital gains tax for the year 199 is null and void as a matter of course (see, e.g., Supreme Court Decision 2001Du

On August 30, 1994, the Plaintiff: (a) purchased 43,239,350 square meters in response to 447-1 ○○○○○○○○○, ○○○○○○○, 447-1 457 m2 m2; (b) 456-1 m239,766,650 m2 in response to each of 456-1 m256-1 m2,549 m269 m2,549 m269 m269,500 m269 m269,500 and 488.5 m235 m23,727,945 m25,7975,757,79,7500 m2, etc.; and (c) the Plaintiff did not assert that the above m235,000 m25,7575,7000.

4) Therefore, the Plaintiff’s assertion that each of the instant dispositions becomes null and void due to the defect of each of the instant dispositions cannot be accepted.

4. Conclusion

Therefore, the revocation of each disposition of this case among the lawsuits of this case is dismissed as it is unlawful, and the confirmation of invalidity of each disposition of this case is dismissed as it is without merit. It is so decided as per Disposition.

List

1. ○○○○○○○-gun ○○○○○○○○ 370 square meters on the day before 370

2.Fluorri 371 1207 square meters prior to the date of the preceding 371

3.Fluorium 377 Doz. 218 square meters

More than anything is notified on July 17, 2016

4.Ba-ri 332-9 489 square meters prior to the date of 332-9 square meters

5. ○○○○○○-gun ○○○○○○○-do, 446-7 square meters, 25 square meters;

6. ○○○○○○-gun ○○○○○○○-do, 447-6 square meters, 26 square meters;

(At least anything else is known through a perusal of the register after the date of October 20, 2016).