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

Inasmuch as the factual basis as to whether the price was paid for the land can only be found through the investigation, the defect in the disposal cannot be objectively seen as objectively and objectively, and thus, it does not constitute grounds for revocation, even if the defect in the disposal cannot be seen as grounds for revocation.

2013Guhap53363 Confirmation of Non-existence of Liability for Tax Payment of Gift Tax (Liability)

IsaA

Head of Mapo 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, EB, the Plaintiff’s birth, acquired a total of 1,072 square meters of O-dong O-dong and 64-57, and 18 square meters of land. On October 30, 2009, EB, the Plaintiff’s birth, completed the registration of ownership transfer with respect to shares 678.5/4,491 of the above land (hereinafter “instant land”), and filed a report thereon with 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 that there is no dispute over recognition, Gap evidence 1, 3, 4, Eul evidence 1, 2, 4, and 5 (including family evidence Nos. 1, 4, and 5) and the purport of the whole pleadings.

2. Summary of the plaintiff's assertion

Since the Plaintiff received a loan from the Fisheries Cooperatives and paid the purchase price for the instant land to the BB, it is not a donation to the instant land (the transfer of the instant land is for the registration of site ownership of the relevant building without exercising a separate property right, and thus, it 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 purport of the entire argument by the court below, it is acknowledged that the Plaintiff failed to present the data that the Plaintiff paid the price for the transfer of the instant land at the time the instant disposition was made during the entire trial period. Rather, it was stated to the effect that the transfer of the instant land was a transaction that did not receive the price. If there are circumstances, the issue of whether the instant transaction constitutes subject to gift tax can only be revealed only when the Plaintiff investigates the factual basis as to whether the Plaintiff paid the price for the instant land to BB. Therefore, in light of the legal principles as seen earlier, it is reasonable to deem that the Plaintiff’s allegation did not constitute grounds for revocation, since the defect of the instant disposition cannot be objectively and objectively deemed as

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 55(1) and 56(2) and (3) of the Framework Act on National Taxes and Articles 55(2) and (3) of the Framework Act on National Taxes, where an administrative litigation is instituted on a disposition under the Framework Act on National Taxes or other tax-related Acts, it shall undergo a prior trial procedure, such as a request for examination or adjudgment, and the administrative litigation shall

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 overall purport of the arguments in the evidence as seen earlier, it can be acknowledged that the said written decision was served on the above KimCC on March 16, 2012. Since it is apparent in the record that the instant lawsuit was filed on December 13, 2012, much more than 90 days after the said lawsuit was filed, the part of the conjunctive claim, which is the preliminary claim subject to the restriction on the period for filing the lawsuit, shall be deemed unlawful, even though it is too excessive. The Defendant’s defense on the merits that points this out is with 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.