early 2010 Heavy1021 (Law No. 1026, 2010)

The date of acquisition of land shall not be deemed the date of liquidation or the date of receipt of repurchase registration.

In full view of the fact that the plaintiffs newly acquired the land by exercising the right of repurchase with free will, and that the land first transferred through consultation is not mandatorily acquired because it was not used for the public works, the rejection disposition of transfer income tax correction under the premise that the date of acquisition of the land is the date of liquidation of the redemption price or the date of receipt

2010Guhap3859 Revocation of revocation of a request for rectification

Attached Table 1 is as shown in the list of plaintiffs.

1. The head of ○○ Tax Office;

ocil 23, 201

May 18, 201

1. The part of the conjunctive claim in the instant lawsuit is dismissed.

2. All of the plaintiffs' primary claims are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

1. The primary purport of the claim

A. On November 1, 2009, the director of the Seocheon District Tax Office

(1) The transfer income tax of KRW 8,464,304 against the Plaintiff Gangwon-A;

(2) capital gains tax of KRW 4,228,200 against Plaintiff UB;

(3) 4,228,200 capital gains tax on Plaintiff UCC;

(4) Transfer income tax of KRW 1,711,140 against Plaintiff AuthorityD;

(5) Transfer income tax of 20,409,279 won against Plaintiff Kim E-E;

(6) capital gains tax of KRW 1,705,517 against Plaintiff KimF;

(7) Transfer income tax of KRW 2,071,815 against Plaintiff literatureG;

(8) Transfer Income Tax of 5,299,096 Won 5,296 against Plaintiff Hah;

(9) A transfer income tax of 16,539,689 Won 16,539 against Plaintiff CII;

(10) Transfer Income Tax of KRW 1,351,032 against Plaintiff J;

(11) The capital gains tax of KRW 7,796,096 against Plaintiff KR;

(12) Transfer Income Tax of 1,706,140 Won 1,70 for Plaintiff Jeon L;

(13) The rejection disposition of each request for correction shall be revoked with respect to capital gains tax of 1,351,050 won and each request for correction against the Plaintiff-M.

(b) the Head of Mapo Tax Office;

(1) On December 2, 2009, capital gains tax of KRW 1,703,393 against Plaintiff ParkN;

(2) On July 10, 2010, the rejection disposition of each claim for correction of capital gains tax of KRW 1,705,517 against Plaintiff Park PP shall be revoked.

2. Preliminary purport of claim

Plaintiff Gangseo-A’s transfer income tax amounting to KRW 4,228,20,20, Plaintiff UB’s transfer income tax amounting to KRW 4,228,200, Plaintiff UCC’s transfer income taxing to KRW 4,228,200, Plaintiff UCC’s transfer income taxing to KRW 1,711,140, Plaintiff KimE’s transfer income taxing to KRW 1,705,517, Plaintiff KimE’s transfer income taxing to KRW 20.409,279, Plaintiff KimE’s transfer income taxing to KRW 1,705,517,515, and KRW 2,071,815, and KRW 5,29,09,096, Plaintiff JJ’s transfer income taxing to KRW 16,539,689, and KRW 7,796,096, Plaintiff K’s transfer income tax amounting to KRW 1,796,096, and KRW 1305,50.

1. Details of the disposition;

A. From March 29, 1963 to October 25, 199 (hereinafter “the first date of acquisition”), the Plaintiffs acquired the ownership of each land indicated in the column of “land” in the separate sheet No. 2 in the separate sheet No. 2 (hereinafter “instant land”). When ○○ City’s incorporation of the instant land into the public works project implemented by ○○ City (the State also No. 48 extension project), as indicated in the column of “the first date of transfer by consultation” in the separate sheet No. 3 (hereinafter “the first date of transfer by consultation”). As between October 30, 2002 and April 4, 2003, the Plaintiffs agreed on and transferred the instant land to ○○ City.

B. After that, when the land of this case is not included in the National Highway No. 48, which was no longer usable for the original public works, ○○ City notified the plaintiffs to exercise the right of repurchase, and the plaintiffs redeemed the land of this case from ○○ City during the period from July 4, 2007 to August 31, 2007, such as the statement in the "registration date of transfer of ownership due to repurchase" (hereinafter "redemption date") in the same list, as the land of this case was redeemed from ○○ City. Thereafter, the plaintiffs again transferred the land of this case to the Korea Land Corporation, which is the project operator of the housing site development project from January 24, 2008 to October 30, 2008.

C. The Plaintiffs transferred the instant land to the Korea Land Corporation from March 2008 to December 2008 after transferring the instant land.

23. Until September 23, 201, the date of acquisition of the instant land was set as the date of repurchase and each preliminary return and payment of capital gains tax were made, but the remaining plaintiffs except Plaintiff Park PP were made on September 1, 2009, and Plaintiff Park PP on May 10, 2010, the acquisition date of the instant land was the primary acquisition of the instant land, and the amount of capital gains tax, such as the stated "reported and paid capital gains tax" in the annexed list No. 4, changed the amount of capital gains tax to the amount stated as "amount of revised capital gains tax"

D. As to the claim for correction filed on September 1, 2009 by the Plaintiff Park Nung and Park PP on the ground that acquisition by the exercise of the right of repurchase cannot be retrospectively applied to the time of initial acquisition due to the acquisition by a reason different from the initial acquisition, the head of the relevant tax office refused the Plaintiff’s request for correction filed on October 7, 2009, and the Plaintiff’s request for correction filed on December 2, 2009, respectively, and did not give any notice on the Plaintiff’s request for correction filed on May 10, 2010.

The director of the tax office of Westerncheon did not notify all of the plaintiffs (hereinafter referred to as "the plaintiffs against the director of the tax office of Western Mancheon") on September 1, 2009, other than the plaintiffs Park N and Park PP (hereinafter referred to as "the plaintiffs against the director of the tax office of Western Mancheon") (hereinafter referred to as "each rejection disposition of this case, including the above non-notification).

E. The Plaintiffs were dissatisfied with the request for a trial to the Tax Tribunal on the date of each request for a trial stated in the separate sheet No. 5, but the remaining Plaintiffs’ claims except for Plaintiff PP were dismissed, and Plaintiff PP’s claims were dismissed. Thereafter, Plaintiff PP again filed a request for a trial with the Tax Tribunal on August 5, 2010 in relation to the request for correction filed on May 10, 2010.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 15 (including each number), Eul evidence 1 to 15

2. Determination as to the defendants' defense prior to the merits

A. Plaintiffs’ claim against Defendant Seocheon District Tax Office

After the plaintiffs filed a request for correction on September 1, 2009, the defendant filed a request for adjudication with the Tax Tribunal on February 26, 2010 (the remaining plaintiffs except the plaintiff KimE) on March 3, 2010 (the plaintiff Kim E-E), which was obvious that the 90 days passed from November 1, 2009, which was within 2 months of the period for filing a request for correction under Article 45-2 (3) of the Framework Act on National Taxes, and therefore, the above plaintiffs' lawsuit of this case is an unlawful lawsuit which was not subject to legitimate trial procedure.

On the other hand, when a taxation authority does not investigate, decide, or notify within the statutory period under Article 45-2(3) of the Framework Act on National Taxes, a taxpayer shall be deemed to have refused a request for correction pursuant to the above provision and may file an appeal against it (see, e.g., Supreme Court Decision 85Nu883, Jan. 31, 1989). As seen above, since the defendant did not notify the plaintiffs of his/her request for correction within the statutory period, it may be deemed that the defendant's request for correction was made. In a case where a refusal disposition is made, the appeal shall be filed within 90 days after the date when he/she becomes aware of the refusal disposition (see, e.g., Supreme Court Decision 90Nu8091, Jun. 25, 1991). If a taxation authority fails to notify the taxpayers within the statutory period, the taxation authority cannot be held responsible for failing to observe the notification period under the Act, and it is reasonable to interpret the above plaintiffs' request for correction under the premise that the above reasons are not followed.

B. Plaintiff Park Jong-P’s claim

The director of the tax office of Mapo-si sent a notice of refusal against the plaintiff's request for correction made on September 1, 2009 to the above plaintiff on October 12, 2009. On March 3, 2010, the 90 days passed since the plaintiff's request for a trial to the Tax Tribunal was dismissed on April 14, 2010, the plaintiff's lawsuit is an unlawful lawsuit without due process for a prior trial.

As seen above, after the decision of the Tax Tribunal on April 14, 2010 was made, the plaintiff again filed a request for correction with the head of Mapo Tax Office (the second) on May 10, 2010, and the head of Mapo Tax Office did not notify the above, and on August 5, 2010, the rejection disposition again filed a request with the Tax Tribunal for a new decision shall be established by the competent administrative agency's declaration of rejection against the citizen's request for a disposition, and thereafter, the new decision of rejection shall be deemed to have been made (see, e.g., Supreme Court Decision 2000Du6084, Mar. 29, 2002). Since the plaintiff's request for correction as of May 10, 2010 was not notified within the statutory period, it can be deemed that there was a new rejection disposition against the plaintiff's request for correction against the head of Mapo Tax Office.

Meanwhile, even after examining all the above evidence, there is no decision by the Tax Tribunal on the plaintiff's request for a trial as of August 5, 2010, and it is apparent in the record that the plaintiff filed the lawsuit in this case on August 27, 2010 before the elapse of 90 days from the date of the request for a trial. However, the plaintiff already filed a request for a trial as of October 7, 2009, and received a decision of rejection as of April 14, 2010 by the Tax Tribunal. The plaintiff's refusal disposition as to the request for a correction as of May 10, 2010 is subject to the same illegal cause as that of the plaintiff's refusal disposition as of October 7, 2009. Therefore, the plaintiff can seek revocation without undergoing the procedure of the previous trial. Therefore, the plaintiff's defense under the premise that the plaintiff did not undergo legitimate procedure of the Framework Act on National Taxes.

C. Plaintiff ParkN’s claim

After the plaintiff filed a request for correction on September 1, 2009 by the head of Mapo Tax Office, he/she raised a request for adjudication with the Tax Tribunal on February 26, 2010, which is obvious that the 90 days have elapsed since November 1, 2009, within two months after the decision period for correction request under Article 45-2 (3) of the Framework Act on National Taxes. Thus, the plaintiff's lawsuit of this case is an unlawful lawsuit without due process of the preceding trial.

On December 2, 2009, the head of Mapo Tax Office, upon the plaintiff's request for correction as of September 1, 2009, issued a rejection disposition on December 2, 2009, and the plaintiff filed the above appeal on February 26, 2010, which is obvious within 90 days from the date on which the plaintiff received the above rejection disposition. Thus, the above appeal by the head of Mapo Tax Office on the premise that the plaintiff did not go through a legitimate pre-trial procedure under the Framework Act on National Taxes is without merit.

3. Whether each of the refusal dispositions of this case is legitimate

1) A. The plaintiffs' assertion

Article 77 (1) of the Restriction of Special Taxation Act provides that the transfer income tax shall be reduced by 10% in cases where the real estate acquired two years prior to the public announcement date of the project approval is transferred to the project operator for the public project. The first acquisition date of the land in this case shall be two years retroactively from December 13, 2006, which is the public announcement date of the project approval date of the Korea Land Corporation. The transfer income tax of each of the land in this case shall be reduced by 10%, and the first acquisition date of each of the land in this case shall be reduced by 10%, and the first acquisition date of each of the land in this case shall be the same as the ownership of the land in this case, and the first acquisition date shall be the same as the ownership of the land in this case, and all of the persons who actively cooperate in the public project through consultation and transfer with respect to the public project like the plaintiffs.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

The principle of strict interpretation derived from the principle of no taxation without law is applicable not only to the cases that meet the taxation requirements, but also to the cases that meet the requirements for non-taxation and tax reduction and exemption. As such, extensively interpreting the requirements for non-taxation or tax exemption and exemption as favorable to taxpayers without any justifiable reason causes a result contrary to the principle of fair taxation, which is the basic ideology of the tax law, and thus, it is not permissible (see, e.g., Supreme Court Decision 2005Da19163, May 25,

In light of the above legal principles, the acquisition date of the land of this case shall be deemed to be the date on which the plaintiffs acquired the land of this case from ○○ City by exercising the right of repurchase, and it shall not be deemed to have acquired the land of this case as the plaintiffs' assertion.

First, the meaning of "acquisition" is defined as "the original acquisition, acquisition by succession, or all other acquisitions with or without compensation through sale, exchange, inheritance, donation, contribution, investment in kind to a corporation, construction, repair, reclamation of public waters, creation of land through reclamation, etc." with respect to acquisition, although Article 6 subparagraph 1 of the Local Tax Act does not directly define the meaning of "acquisition" in the Income Tax Act, the repurchase under the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. for Public Works (hereinafter "Public Works Act") is also made at the time of completion of the registration of ownership transfer by exercise of the repurchase right, and the repurchase under Article 77 (1) of the former Restriction of Special Taxation Act is also included in the repurchase of the Public Works Act.

Second, regarding the reduction of capital gains tax under Article 77 (1) of the former Restriction of Special Taxation Act, whether the plaintiffs can see the time when they acquired the land in this case, and even if the repurchase right holder has the aspect of recovering the ownership of the land previously agreed upon or expropriated, it shall be deemed as a new sale between the repurchase right holder and the project operator, and it shall not be deemed as the invalidation or cancellation of the transfer by agreement or expropriation.

Third, in the case of this case, even if the repurchase right holder acquired the previous land by repurchase, the tax base is to be determined at least in relation to the calculation of the tax base in that it is the transfer margin between the second and the second consultation date from the repurchase date, and the acquisition date is the date of repurchase other than the first acquisition date (if the date of redemption of the repurchase price is clear, the date of liquidation, or if it is unclear, the date of receipt of registration).

Fourth, the plaintiffs, at their own free will, newly acquired the land of this case by exercising a redemptive right, and the land of this case, which was transferred by the first consultation, was not used for public works and was not mandatorily acquired.

Therefore, the rejection disposition of this case on the premise that the date of acquisition of the land in this case is the date of liquidation or the date of registration for repurchase is legitimate.

4. Judgment on the plaintiffs' conjunctive claim against the defendant Seocheon District Tax Office

On the other hand, in cases where an administrative agency rendered a rejection disposition against a party's application, it cannot be deemed that there is an illegal omission by a large merchant of an appeal litigation, and thus, the lawsuit for confirmation of illegality of omission is unlawful (see, e.g., Supreme Court Decisions 92Nu17099, Apr. 23, 1993; 95Nu7345, Sept. 15, 1995); and the fact that the head of Seo-man District Tax Office issued a rejection disposition against the plaintiffs' request for correction as of September 1, 2009 is identical to the above 2. A. Thus, the plaintiff's request for a preliminary claim seeking confirmation of illegality of omission on the premise of the defendant's omission against the plaintiffs' claim does not have a benefit of seeking such confirmation.

5. Conclusion

Therefore, the part of the conjunctive claim in the lawsuit of this case is unlawful and dismissed, and all of the plaintiffs' primary claims are dismissed. It is so decided as per Disposition.