If there is room for dispute over the interpretation of the legal principle at the time of imposition because it is not clear, it does not constitute grounds for invalidation as the defect is not obvious.

In a case where there is room for dispute over the interpretation of the relevant legal relations or factual relations because the legal principles that the relevant statutes are not applicable clearly revealed, even if the tax authority erroneously interpreted it and issued a tax disposition, it is merely erroneous for the fact of taxation, and thus, it cannot be said that the defect is evident.

Article 8 of the Framework Act on National Taxes

Article 9 (Notification, etc. of Tax Payment)

2016Guhap58697 Nullification of the imposition disposition of capital gains tax

HongA

○ Head of tax office

June 15, 2016

July 29, 2016

1. The part of the lawsuit in this case, which seeks confirmation of invalidation on each imposition of local income tax and special rural development tax, shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Cheong-gu Office

The Defendant confirmed that each imposition of capital gains tax of 00,000,000 won for May 1, 2015, and local income tax of 0,000,000,000 won for local income tax of 0,000,000 as of May 30, 2012, and imposition of KRW 0,00,000 for special rural development tax of 0,00,000 is null and void (the Plaintiff specified the date of imposition of capital gains tax and local income tax as of May 9, 2012, but it is apparent that it is in writing in light of the entries in evidence No. 3, as above,

1. Details of the disposition;

A. On January 21, 1997, the Plaintiff acquired an unauthorized building located in ○○ Dong-dong, ○○○○○, but was redeveloped on September 6, 2002, the Plaintiff purchased apartment bonds on September 6, 200, and disposed of the said apartment on November 23, 2006.

B. On December 8, 2006, the Plaintiff reported 33,853,326 capital gains tax to the Defendant under Article 99-3 of the former Restriction of Special Taxation Act (amended by Act No. 8050, Oct. 4, 2006; hereinafter “Special Taxation Act”) and reported and paid only 6,770,660 capital gains tax to the Defendant.

C. However, in interpreting Article 99-3 of the Restriction of Special Taxation Act, the defendant is the date of acquisition of the above building.

On May 1, 2012, the transfer income tax is not reduced or exempted for the transfer income before the date of acquisition of apartment houses. On the other hand, the Plaintiff imposed transfer income tax of KRW 25,346,90 on the Plaintiff on May 1, 2012, while the Plaintiff imposed a disposition to reduce the amount of KRW 6,770,660 for special rural development tax already reported and paid to the Plaintiff as KRW 2,439,180 (hereinafter “instant first disposition”) and then appropriated the difference of KRW 4,31,480 for the said transfer income tax. Meanwhile, the Plaintiff imposed local income tax of KRW 2,165,740 on the Plaintiff.

D. Since then, on May 30, 2012, the Defendant estimated the acquisition value of the above building upon the Plaintiff’s request and reduced capital gains tax of KRW 25,346,904 to KRW 23,954,900. On the other hand, the Defendant issued a disposition to increase capital gains tax of KRW 2,439,180 to KRW 2,647,130 (hereinafter “instant disposition”). Meanwhile, the amount of local income tax of KRW 2,165,740 imposed on the Plaintiff was reduced to KRW 2,061,760.

E. On July 9, 2012, the Plaintiff filed an objection against the instant disposition against the Defendant, but the Defendant rendered a decision to dismiss it on July 31, 2012.

F. Since then, the Supreme Court sentenced the Defendant’s decision on December 11, 2014 to the effect that it is inconsistent with the above interpretation (Supreme Court Decision 2013Du2273) regarding Article 99-3 of the Restriction of Special Taxation Act, the Plaintiff filed each objection against the instant Disposition against the Defendant on June 18, 2015 and August 28, 2015, but the Defendant dismissed each of the instant Disposition against the Defendant on July 17, 2015 and September 22, 2015.

G. On October 5, 2015, the Plaintiff imposed the instant Disposition No. 2 on the Tax Tribunal and the imposition of local income tax.

On the other hand, the Tax Tribunal revoked only the increased portion of the imposition of special rural development tax and decided to dismiss the remainder of the appeal.

[Reasons for Recognition] There is no dispute, each entry of Gap evidence 1 through 10, and the purport of the whole pleadings.

2. Judgment on the lawfulness of the lawsuit

A. Part of the lawsuit seeking confirmation of invalidity of a disposition imposing local income tax

ex officio, local income tax on the capital gains of residents shall have jurisdiction over the place of tax payment.

The head of the Gun/Gu shall report and pay to the head of the Gun/Gu and the local income tax on the transfer income of residents;

The head of the Si/Gun/Gu having jurisdiction over the place of tax payment is also the Framework Act on National Taxes.

If income tax is imposed and notified in accordance with the method of correction, determination, etc. under the Income Tax Act, even if the local income tax is imposed and notified together, the head of the relevant Si/Gun/Gu shall pay it.

Since it seems that the notice was excessive, the defendant of the appeal seeking the revocation of the disposition of imposition is the income tax.

The head of the relevant Si/Gun/Gu having jurisdiction over the place of tax payment shall be the head of the relevant Si/Gun/Gu (Supreme Court on February 25, 2005).

High Court Decision 2004Du11459 delivered on this part against a person who is not qualified as the defendant.

B. Small and medium enterprise seeking confirmation of invalidity of imposition of special rural development tax

1) Of the imposition of 2,439,180 won in special rural development tax, the portion exceeding 2,439,180 won in the imposition disposition

According to the purport of Gap evidence Nos. 9 and Eul evidence Nos. 1 and Eul evidence Nos. 1 and all arguments, the Tax Tribunal considered that the notice of tax payment of the second disposition of this case was not served, and decided to revoke the increased portion of the second disposition of this case, and that the defendant issued a disposition of reducing the special rural development tax from 2,647,130 to 2,439,180 won on February 11, 2016. Thus, the part exceeding 2,439,180 won in the first disposition of the special rural development tax of this case exceeds 2,647,130 won is not eligible. Thus, this part of the lawsuit is not eligible.

2) Lawsuit seeking confirmation of invalidity on imposition of remaining tax amount of KRW 2,439,180

Part

In light of the purport of Article 22-2(1) of the Framework Act on National Taxes, as long as the service of a tax notice on a taxation violates the provisions of Article 8(1) and becomes effective, such taxation disposition is null and void (see, e.g., Supreme Court Decision 95Nu3909, Aug. 22, 1995). There is no ground to deem that a tax notice on the second disposition of this case was served on the Defendant, and thus, the imposition disposition of KRW 2,439,180 among the second disposition of this case shall be deemed null and void. The Defendant’s correction that increases the amount of tax originally determined pursuant to the tax law does not affect the rights and obligations under this Act or other tax laws regarding the amount of tax initially determined, and thus, the Defendant’s imposition disposition cannot be seen as null and void for the reason of the defect in the service procedure of the second disposition of this case, excluding the amount of tax initially determined from the second disposition of this case, regardless of its lapse of the lapse of 209-1.

However, even in this case, the remaining Special Rural Development Tax amounting to 2,439,180 won, which was reduced according to the disposition of this case, from the special rural development tax that the plaintiff originally reported and paid, continues to exist independently and effectively without any influence (see Supreme Court Decision 95Nu3909, Aug. 22, 1995). Accordingly, the plaintiff is deemed to have no benefit to seek confirmation of invalidation in the disposition of imposition of the remaining Special Rural Development Tax amounting to 2,439,180 won, excluding the unlawful portion, which is not eligible among the disposition of this case 2.

C. Sub-committee

As to each imposition disposition of local income tax and special rural development tax among the lawsuit of this case, each invalidation is confirmed.

The claim is unlawful because it does not meet the requirements of lawsuit.

3. Determination on the invalidity of the disposition

A. The plaintiff's assertion

Among the first disposition of this case, the imposition of capital gains tax was imposed on the non-taxation of the original taxation according to the above Supreme Court decision, and the difference remaining after the reduction from the first disposition of this case among the special rural development tax originally reported and paid by the plaintiff is imposed on the capital gains tax without notifying the plaintiff. Furthermore, the collection disposition was made after the expiration of the statute of limitations of the collection right, so it should be deemed null and void.

B. Determination

1) In order to ensure that a taxation disposition is null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient. The defect is significant in violation of the essential part of the law and is objectively objectively

In determining whether a defect is significant and obvious, the purpose, significance, and function, etc. of the laws and regulations, which serve as the basis for the said taxation, should be examined from a teleological perspective and, at the same time, reasonable consideration should be made on the specificity of the specific case itself. In addition, in a case where a taxation is conducted by applying the provisions of a certain Act and subordinate statutes to a certain legal relationship or fact, the legal doctrine clearly stating that the provisions of the said Act cannot be applied to such legal relationship or fact, and thus, if a taxation is conducted by the tax authority by applying the provisions of the said Act and subordinate statutes, the defect is grave and obvious. However, if there is room for dispute over the interpretation of the said Acts and subordinate statutes because the legal doctrine is not clearly revealed as to the legal relation or fact, it is merely a mistake of the fact requiring taxation (see, e.g., Supreme Court Decision 2011Da103809, Dec. 26, 2013).

2) The former part of the main sentence of Article 99-3(1) of the Restriction of Special Taxation Act shall be acquired by a resident through redevelopment partnership.

The former part of Article 99-3(1) of the Restriction of Special Taxation Act provides that “Any income accruing from the acquisition of a newly-built house and transfer thereof within five years from the date of acquisition shall be reduced or exempted from capital gains tax on the income accrued before the date of acquisition of the newly-built house”. However, in Supreme Court Decision 2013Du2273 Decided December 11, 2014, the lower court’s determination that any capital gains tax on the transfer income accrued before the date of acquisition of the newly-built house shall not be reduced or exempted from the date of acquisition of the newly-built house shall not be imposed on the transfer income from the date of acquisition of the newly-built house to the date of acquisition of the newly-built house shall be reduced or exempted from the date of acquisition until the date of acquisition of the newly-built house, and thus, the legal principle on the former part of Article 99-3(1) of the Restriction of Special Taxation Act, even if the part of the first disposition in this case was unlawful, and thus, there is no room for dispute over its interpretation.

In addition, even if the Defendant did not notify the Plaintiff of part of the special rural development tax to be refunded to the Plaintiff while appropriating for the transfer income tax, or the collection disposition was made after the expiration of the extinctive prescription period of the right to collect the transfer income tax (Article 27(1)2 of the Framework Act on National Taxes, the extinctive prescription period of the right to collect the transfer income tax is five years. The Plaintiff asserted that the said imposition disposition of the transfer income tax was made on May 1, 2012 and the said disposition was issued on February 5, 2013). This does not affect the validity of the said imposition disposition of the transfer income tax as a matter related to the payment of the

C. Sub-committee

Therefore, the plaintiff's above assertion cannot be accepted, and the disposition of imposition of capital gains tax is legitimate.

4. Conclusion

Therefore, the part of the lawsuit of this case seeking confirmation of invalidation regarding each imposition of local income tax and special rural development tax is dismissed as it is unlawful. The remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.