Cho Jae-2012-west-3368 ( October 23, 2012)

In the application of Article 99-3 of the former Act on Special Cases concerning the Regulation of Tax Reduction and Exemption, the interpretation of the reduction and exemption portion does not fall under the invalidation of a year.

In order for a defective administrative disposition to be null and void as a matter of course, it should be objectively apparent that the defect has violated important parts of the law and regulations.

Restriction of Special Taxation Act Article 99-3 (Special Taxation for Transfer Income Tax on Purchasers of Newly-Built Houses)

2015Gudan6059. Action to nullify the imposition of capital gains tax

AA

BB Director of the Tax Office

February 24, 2016

April 6, 2016

1. The plaintiff's claim is dismissed.

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

On May 8, 2012, the former Defendant issued a transfer income tax of KRW 87,652,280 against the Plaintiff on May 8, 2012 confirms that the imposition of transfer income tax of KRW 87,652,280 against the Plaintiff is invalid.

1. Details of the disposition;

A. On July 29, 1997, the Plaintiff acquired a model apartment 00,000 Dong 0000 Dong, Yeongdeungpo-gu, Seoul (hereinafter “the previous house”), but the previous house was reconstructed, and acquired on August 28, 2002, Yeongdeungpo-gu, Seoul, 000 Dong 000 000 Dong 0000 (hereinafter “the new house”).

B. The Plaintiff transferred the newly-built house of this case on April 7, 2006. On the ground that it was transferred within five years from the date of acquisition of the previous house of this case, the Plaintiff reported the transfer income tax for 2006 under Article 99-3(1) of the former Restriction of Special Taxation Act (wholly amended by Act No. 6762, Dec. 11, 2002; hereinafter the same shall apply) by deeming the entire amount of the transfer income tax to be abated or exempted. However, on May 8, 2012, the Defendant deemed that the transfer income accrued from the date of acquisition of the previous house of this case to the date of acquisition of the newly-built house of this case is not the amount to be deducted from the income amount subject to taxation of transfer income tax, and subsequently corrected and notified the Plaintiff (hereinafter referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 3, 4 evidence, Eul 1 evidence, and the purport of the whole pleadings

A. The plaintiff's assertion

Although Article 99-3(1) of the former Restriction of Special Taxation Act clearly prescribes that the total amount of capital gains tax shall be reduced for transfer within five years from the date of acquisition of newly-built house, the Defendant issued the instant disposition by mistake in interpreting Article 99-3(1) of the former Restriction of Special Taxation Act, and thus the instant

B. Determination

In order to become null and void a defective administrative disposition, it must be objectively obvious that the defect violates the former part of the relevant laws and regulations, and it is necessary to reasonably consider the purpose, meaning, function, etc. of the relevant laws and regulations as well as the specificity of the specific case itself in order to determine whether the defect is significant and obvious. If an administrative agency takes an administrative disposition by applying certain provisions to certain legal relations or factual relations, it is clearly stated that the legal principles governing the applicable provisions of the Acts are unclear, and thus, if an administrative agency takes the disposition within the period of 10 years from the date of acquisition of the newly-built house without any dispute over its interpretation, it is obvious that the defect is grave and obvious. However, even if the legal principles governing the transfer of the newly-built house cannot be applied to its legal relations or factual relations, and thus, it is obvious that the newly-built house was transferred within the period of 5 years from the date of acquisition of the newly-built house, and thus its defect is not clear that the transfer income tax amount falls under the latter part of the newly-built house (see Supreme Court Decision 202Da68485, Oct. 15, 200).

Therefore, the Plaintiff’s assertion that the disposition in this case is null and void is without merit (in the case of the disposition in this case, legal remedies have been provided, so in order to make the disposition null and void as a matter of course, the defect must be serious, and even if it should be apparent, it cannot be seen that it is considerably unfair in terms of the Plaintiff’s remedy, etc. for rights and interests. Therefore, it cannot

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.