Seoul Administrative Court 2010Gudan10252 ( October 15, 2011)

National Tax Service Review and Transfer 2010-0178 (20 August 20, 2010)

In accordance with the re-audit decision, it does not violate the principle of prohibition of disadvantageous changes if increased.

The prohibition of disadvantageous change is applied to cases where the contents of the review decision are more disadvantageous than that of the tax assessment subject to the request for review, and where the tax authority conducted a reinvestigation according to the re-examination decision and thereby corrected due to omissions or errors in the calculation of the tax base and tax amount

Article 79 of the Framework Act on National Taxes: Prohibition of Unfair Objections and Disadvantages

2011Nu10708 Disposition of revocation of imposition of capital gains tax, etc.

KimA

Head of the District Tax Office

Seoul Administrative Court Decision 2010Gudan10252 decided February 15, 2011

December 2, 2011

February 3, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of capital gains tax of KRW 49,985,627 against the plaintiff on May 1, 2010 shall be revoked.

1. Quotation of judgment of the first instance;

The reasons stated in this decision are as follows: (a) supplement the first instance judgment in Paragraph (2); and (b) refer to the second instance judgment in Paragraph (3) except for the determination of the Plaintiff’s additional arguments in the trial.

2. Supplement of judgment of the first instance court;

In full view of the various circumstances revealed by the court of the first instance, the Plaintiff paid the amount necessary for acquiring new shares of BB Korea after comprehensively delegating NAN with the authority to acquire new shares of BB Korea, and NN acquired the convertible bonds of 303,750,000 out of the above amount paid to the Plaintiff in the name of 303,750, and then converting cCC’s convertible bonds into 6,750 shares into cCC’s 6,750 shares, and finally exchanged 226,601 shares of BB Korea. The evidence submitted by the Plaintiff in the first instance trial is insufficient to reverse the above recognition even if the witness KimK’s testimony was neglected.

3. Determination on the additional argument

The plaintiff filed a request for review with the Commissioner of the National Tax Service to revoke the disposition of imposition of capital gains tax of 36,224,806 won for the initial imposition year 2006. Although the Commissioner of the National Tax Service decided to rectify the taxation of capital gains tax, capital gains tax base, and tax amount after re-audit after deliberation by the National Tax Examination Committee, the disposition of 49,985,621 won increased by 13,760,815 won compared to the initial tax amount without re-audit according to the above decision is unlawful because it violates Articles 80 and 79 of the Framework Act on National Taxes. According to the statement of evidence No. 5, health care and priority, the defendant conducted a re-audit between January 25, 2010 and March 9, 2010, and the defendant cannot be deemed to have violated Article 80 of the Framework Act on National Taxes for the applicant's reasons for rejection or re-audit under the above decision of the Commissioner of the National Tax Service.

4. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.