Cho High Court Decision 201Na0609 ( October 21, 2011)

The filing of a lawsuit after the lapse of 90 days from the notice of the decision of adjudication;

The decision of dismissal of the national tax appeal shall be notified, and the lawsuit shall be illegal and the judgment of loss shall be confirmed after the lapse of 90 days, and the claim shall not be accepted as it constitutes a case where the final judgment has res judicata effect

2012Gudan1773 Revocation of Disposition of Imposing capital gains tax

p. Mex

The Director of the National Tax Service

December 14, 2012

December 28, 2012

1. The instant lawsuit shall be dismissed.

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

The Defendant’s disposition of imposition of KRW 000 on November 1, 2010 against the Plaintiff on November 1, 201 shall be revoked.

1. Details of the disposition;

A. On February 16, 2004, the Plaintiff acquired 341m2, 00-2, 000-2, 200-3, 751m2, 300-4, 1,026m2 prior to the same Ri. On August 10, 2009, the Plaintiff acquired the said land to KimA, ② on December 24, 2009, and ③ on February 19, 2010, from the transfer of the said land to the largestB, the Plaintiff acquired x 00 m2,400 m2 (hereinafter referred to as “replaceed land”).

B. On January 2010, the Plaintiff filed an application for reduction of or exemption from capital gains tax on the ground that the Plaintiff transferred the instant land to the Defendant and acquired the instant substitute land as farmland substitute land is considered to fall under the reduction or exemption of capital gains tax, since it constitutes farmland substitute land.

C. However, on November 1, 2010, the Defendant rendered a disposition to exclude the Plaintiff from the application of the capital gains tax reduction and exemption provisions on farmland substitute land for three or more years, and impose capital gains tax of 000 won for the year 2009 (=00 won +00 won) (hereinafter “instant disposition”).

D. The Plaintiff is merely a disposition of this case and filed an appeal with the Tax Tribunal on January 28, 201 through an objection on December 20, 2010, but the Tax Tribunal dismissed the appeal on April 21, 201.

E. After that, the Plaintiff filed a lawsuit against the Defendant seeking the revocation of the instant disposition with the court 201Guhap2035, and this court rendered a judgment dismissing the Plaintiff’s claim on November 2, 2011. Accordingly, the Plaintiff appealed (Seoul High Court 201Nu2239), but the lower judgment was handed down, but the lower court rendered another appeal (Supreme Court 2012Du11935), but the Plaintiff filed another appeal (Supreme Court 2012Du1935), but the lower judgment became final and conclusive on September 13, 2012.

[Ground of recognition] Facts without dispute, Gap 1 to 4 evidence, Gap 20 evidence, Eul 1 evidence, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A lawsuit seeking cancellation of a disposition of national taxes, such as income tax, shall not be instituted without going through a request for examination or adjudgment under the Framework Act on National Taxes and a decision thereon, and shall be filed within 90 days after the decision on such request for examination or adjudgment is notified (Article 56 (2) and (3) of the Framework Act

In the case of this case, as seen earlier, the plaintiff was notified of the decision to dismiss the national tax adjudication on the disposition of this case on or around April 21, 201, and it is apparent in the record that the lawsuit of this case was filed on October 24, 2012 after the elapse of 90 days from the lawsuit of this case. Thus, the lawsuit of this case is unlawful (in addition, as seen earlier, the lawsuit of this case has already been filed and the judgment against the plaintiff has become final and conclusive as to the disposition of this case. Thus, the plaintiff's claim of this case cannot be accepted because the lawsuit of

3. Conclusion

Since the lawsuit of this case is unlawful, it is decided to dismiss it and it is so decided as per Disposition.