The defect in the disposition cannot be objectively seen as objectively apparent and thus does not constitute grounds for invalidation.

It can be revealed only after investigating the factual basis as to whether the price was paid for the land. Thus, the defect in the disposition of this case cannot be objectively seen as objectively, and thus, it does not constitute grounds for revocation, even if it could not be objectively seen as grounds for revocation.

2013Guhap5114 Confirmation of Non-existence of Gift Tax Liability (Liability)

The United States of America

Samsung Head of Samsung Tax Office

September 13, 2013

October 29, 2013

1. The plaintiff's main claim is dismissed.

2. The plaintiff's conjunctive claim among the lawsuit of this case is dismissed.

3. The costs of the lawsuit, including the part resulting from the supplementary participation, shall be borne by the Plaintiff.

Cheong-gu Office

1. Main claim;

On July 1, 2011, the Defendant confirmed that the imposition of OOO on the gift of October 30, 2009 against the Plaintiff is null and void.

2. Preliminary claim;

The Defendant’s imposition of the gift tax on October 30, 2009 against the Plaintiff on July 1, 201 is revoked.

1. Details of the disposition;

A. On April 8, 2009, 200 OO-dong and 64-57, and 1,072 square meters in total, among 18 parcels of land on October 30, 2009, B completed the registration of ownership transfer in the Plaintiff’s future with respect to 1,357/4,491 shares out of the above land (hereinafter “instant land”). On October 30, 2009, B reported transfer income tax to the head of Yangyang Tax Office.

B. During the period from March 21, 201 to April 4, 2011, the head of the tax office had conducted a tax investigation on capital gains tax on B, and had the instant land transferred to the Plaintiff without payment, and thus revoked the said capital gains tax decision and notified the Defendant, who is the head of the tax office having jurisdiction over the Plaintiff, of the gift tax assessment data. Accordingly, on July 1, 201, the Defendant imposed an OOO on the Plaintiff on the gift gift tax donated on October 30, 2009 (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and delegated a request for examination to a certified public accountant KimCC by delegation to the Commissioner of the National Tax Service, but the said request was dismissed on March 9, 2012.

Facts without any dispute, Gap's No. 1, 5, 6, and Eul's No. 1, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Summary of the plaintiff's assertion

Since the Plaintiff paid the purchase price for the instant land to BB, it is not a donation of the instant land (AB’s transfer of the instant land is for the registration of site ownership of the relevant ground building without any separate purpose of exercising property rights, and thus cannot be deemed as subject to capital gains tax).

However, on the contrary premise, the instant disposition, which the Plaintiff deemed to have donated the instant land, was null and void because it erred in the application of the tax items, and thus seeking confirmation, and seek revocation of the instant disposition, if the said defect does not constitute grounds for invalidation.

3. Judgment on the main claim

In order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and its defect must be objectively obvious and serious as it violates the important part of the law (see Supreme Court Decision 2007Du11979, Jan. 10, 2008). Furthermore, in a case where there are objective circumstances that may mislead the misunderstanding of any legal relation or factual relation which is not subject to taxation as being subject to taxation, if it is possible to clarify the factual relation accurately, whether it is subject to taxation or not, can only be said to be apparent even if the misunderstanding of the defect is serious, and thus, if the legal relation or factual relation of the subject of taxation is erroneous and imposing taxes, the said taxation can not be deemed null and void as a matter of course, and only can it be revoked (see Supreme Court Decision 81Nu69, Oct. 26, 1982).

However, in full view of the above evidence and evidence evidence evidence No. 2, the plaintiff failed to present the data that the plaintiff paid the price for the transfer of the land of this case to the pre-trial stage. Rather, it is acknowledged that the transfer of the land of this case was a transaction that did not receive the price. If there is such circumstance, the issue of whether the above transaction constitutes subject to gift tax can only be clarified only when the plaintiff investigates the factual relation as to whether the plaintiff paid the price for the land of this case to the BB. Thus, in light of the above legal principles, it is reasonable to view that the defect of the disposition of this case by the plaintiff in light of the above legal principles as seen earlier is objectively obvious, and thus, it does not constitute grounds for revocation.

Therefore, under different premise, the plaintiff's primary claim seeking nullification of the disposition of this case cannot be accepted without further review.

4. Whether the conjunctive claim is legitimate;

The Defendant’s conjunctive claim part of the instant lawsuit is unlawful on the ground that the period for filing a lawsuit is excessive, and thus, pursuant to Articles 5(1) and 56(2) and (3) of the Framework Act on National Taxes, where an administrative litigation is filed against a disposition under the Framework Act on National Taxes or other tax-related Acts, it shall undergo the pre-trial procedure, such as a request for examination or adjudgment under the Framework Act on National Taxes, and the administrative litigation shall be filed within 90 days after the decision on

However, as seen earlier, the Plaintiff filed a request for review with the Commissioner of the National Tax Service through KimCC, a tax agent, but the said request was dismissed on March 9, 2012. In full view of the evidence and evidence No. 4 as seen earlier and the purport of the entire pleadings, it can be acknowledged that the above decision of review was served on the above KimCC on March 16, 2012. Since it is apparent in the record that the lawsuit in this case was filed on December 12, 2012, for which the period exceeding 90 days passed thereafter, the part of the conjunctive claim, which is the preliminary claim subject to the restriction on the period for filing the lawsuit in this case, shall be deemed unlawful, even if it were to have been filed. The Defendant’s objection on this point has merit.

5. Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is without merit, and the conjunctive claim is illegal, and it is so decided as per Disposition.