If it is possible to accurately investigate the facts, it is not clear that the defect is apparent even if it is serious.

If the issue of whether a taxable object is subject to taxation can only be clarified by accurately investigating the facts, even if the defect is serious, it cannot be seen that it would be apparent even if the defect is serious, and thus, it cannot be deemed that the illegal taxation disposition that misleads the fact of the taxation requirement is null

Article 21 (Other Incomes)

2016-Gu Partnership-6538 Demanding nullification of a tax imposition disposition

AA

o Head of the tax office

2017.07.05

2017.07.26

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of transfer income tax of KRW 00,000,000 on July 1, 2009 against the Plaintiff and imposition of transfer income tax of KRW 00,000,000 on January 2, 2012 are confirmed to be null and void.

1. Details of the disposition;

A. On June 28, 2005, the ownership transfer registration was made on June 28, 2005 with respect to Nos. 005, 003, and 003 (hereinafter “the instant real property”) at 00,000 - 00 - 00 - 00 - (hereinafter “the instant real property”).

B. Since then, with respect to subparagraph 003, each registration of ownership transfer was made on September 19, 2006 due to trade in the future BB on September 19, 2006, on August 20, 2009 as to subparagraph 005, due to sale by voluntary auction in the future of the CCC on August 20, 209, and on subparagraph 003, due to DD and EE (each 1/2 equity) on September 28, 2009.

C. On July 1, 2009, the Defendant notified the Plaintiff of KRW 00,00,000 for the transfer of land located at 00,000 on July 1, 2009 (hereinafter referred to as “disposition for taxation reverting to 2006”), and notified the Plaintiff of KRW 00,000 for the transfer income tax reverting to 2009, applying the conversion acquisition value as to the transfer of Nos. 005 and 003 on January 2, 2012 (hereinafter referred to as “disposition for taxation reverting to 2009”; and hereinafter referred to as “instant disposition for taxation reverting to 2006”).

D. The Plaintiff filed a lawsuit to confirm that “the Plaintiff was in the position of a title trustee for the instant real estate at 00 district court 00 00 Gahap2016 Gahap00000,” but the said court rendered a ruling of dismissal on January 20, 2017 on the ground that “the Plaintiff did not have any interest in confirmation.”

[Ground of recognition] Facts without dispute, Gap evidence 4, Eul evidence 8-2, Eul evidence 10-2 and Eul evidence 10-4, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The Defendant imposed the instant disposition against the principle of substantial taxation, even though the Plaintiff was merely a trustee who was entrusted with the title of the pertinent real estate in the title of the pertinent real estate, and did not know about the sale of the instant real estate, and did not gain any profit from the sale, and imposed the instant disposition on the transfer margin calculated by setting the conversion value as the acquisition value for the year 2009. The instant disposition of imposition is null and void because its defect is obvious.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) In general, a tax disposition imposed on a person who does not have any factual relation, such as the legal relation, income, or act, which is subject to taxation, shall be deemed to be significant and apparent, but in a case where there are objective circumstances that could mislead him to believe that he is subject to taxation with respect to any legal relation, or factual relation, which is not subject to taxation, if it is possible to accurately investigate the factual relation, whether it is subject to taxation or not, if it is possible to clarify the factual relation accurately, it cannot be deemed to be apparent even if the defect is serious, and thus, it cannot be deemed that the taxation disposition by mistake of the fact subject to taxation is null and void automatically (see, e.g., Supreme Court Decision 20

In addition, when a tax authority intends to impose a tax, it shall determine the tax base and calculate the tax base based on the accurate basis obtained according to the method of investigation prescribed by the relevant tax law, and if the tax base and the tax amount are to be imposed in a vague manner without any grounds, completely disregarding such methods of investigation, etc., such defect may be deemed to be null and void as it is significant and obvious. However, if it is found that there was an error in the investigation procedure such as simple mistake of the taxable object, erroneous selection of the method of investigation, and error in calculating the amount of tax, it is only the reason for revocation (see, e.g., Supreme Court Decision 96Nu12634, Jun. 26

Meanwhile, in a lawsuit seeking the invalidation of an administrative disposition as a matter of course, the person who seeks the invalidation is responsible to prove that the defect existing in the administrative disposition is significant and apparent (see, e.g., Supreme Court Decision 82Nu154, Feb. 28, 1984).

2) First of all, according to the statements on the assertion of defects related to title trust, the facts that title trust was held in title trust to the Plaintiff with respect to the instant real estate shall be recognized. However, according to the respective statements and arguments in the evidence Nos. 8-2, No. 10-2, and No. 12, the Plaintiff’s ownership transfer registration regarding the instant real estate was made in the future. In particular, according to the fact that the debtor of the right to collateral security, for which the TT Agricultural Cooperative has made the registration of establishment of the instant real estate in 05 and No. 003, the transfer income under No. 003 at the time of the imposition of transfer income tax for 2006, added to the fact that the acquisition tax return was made in the name of the Plaintiff, shall be treated as “0,” and it can be acknowledged that the Plaintiff was excluded from the subject of imposition of transfer income tax. According to the above acknowledged facts, it can only be seen that the tax authority imposed the transfer income tax for the instant real estate in question on the Plaintiff.

3) Next, with respect to the assertion of defects related to the calculation of gains from transfer, the defendant applies the successful bid price in the discretionary auction procedure with respect to subparagraphs 005 and 003, and the acquisition price shall be calculated by applying the conversion value as there is no evidence to verify the actual transaction price. There is no evidence to deem any error in the calculation of gains from transfer, and even if there is no error in the calculation of gains from transfer, the defect is not obvious in appearance.

3. Conclusion

The plaintiff's claim is without merit, and all of them are dismissed. It is so decided as per Disposition.