Article 451(1) of the Civil Procedure Act

2. The costs of retrial shall be borne by the plaintiff.

Purport, purport of appeal and request for retrial

The judgment subject to a retrial and the judgment of the first instance shall be revoked. The imposition of capital gains tax of 00 won (including additional tax) made by the Defendant (hereinafter referred to as “Defendant”) against the Plaintiff (hereinafter referred to as “Plaintiff”) on December 0, 2015 shall be revoked on December 0, 2015.

According to the records, the following facts are recognized.

A. The Plaintiff acquired the instant apartment on February 0, 198 with 00.00 square meters for exclusive use by 00.00 square meters, Seoul, Gangnam-gu, Seoul (hereinafter “instant apartment”) and transferred it on June 0, 2013. Under the premise that the instant apartment constitutes “one house for one household” subject to non-taxation of capital gains tax under Article 89(1)3 of the former Income Tax Act (amended by Act No. 11845, May 28, 2013; hereinafter the same shall apply), Article 89(1)3 of the same Act, and Article 154(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 24640, Jun. 28, 2013; hereinafter the same shall apply), the Plaintiff reported and paid capital gains tax on the portion exceeding KRW 900 million out of the transfer margin.

B. From October 0, 2015 to October 0, 2015, the Defendant conducted an investigation into capital gains tax on the Plaintiff, and confirmed that ○○○○○○○-dong 00 Dong 00 (hereinafter “the instant officetel”) among the 0 bonds officetels owned by the Plaintiff other than the instant apartment is being used for residential purposes, the instant officetel is deemed as “one house for one household,” and on December 0, 2015, the instant apartment does not constitute “one house for one household,” and thus, the Defendant corrected and notified the Plaintiff of KRW 00 (including additional tax) of capital gains tax for the year 2013 for the Plaintiff (hereinafter “instant disposition”).

C. On June 0, 2016, the Plaintiff appealed to the Tax Tribunal for the instant disposition, but the Tax Tribunal dismissed the Plaintiff’s request on August 0, 2016.

D. The Plaintiff filed a lawsuit seeking revocation of the instant disposition with the Seoul Administrative Court by asserting that the instant apartment constitutes “one house for one household” subject to non-taxation of capital gains tax, and that the instant officetel is not a house (2016Gudan*******). The said court dismissed the Plaintiff’s claim on June 14, 2017.

E. Although the Plaintiff appealed against the above judgment (2017Nu17******). This court dismissed the Plaintiff’s appeal on December 6, 2017 (hereinafter referred to as the “Ruling on Review”). The Plaintiff appealed again to the Supreme Court (2017du******). The Supreme Court dismissed the appeal on March 29, 2018, and the judgment became final and conclusive by serving the Plaintiff on April 2, 2018.

2. Existence of grounds for retrial

A. The plaintiff's assertion

Despite the fact that government agencies are legally identified as one house for one household in accordance with lawful procedures pursuant to Article 99-2(3) of the Restriction of Special Taxation Act, the instant disposition is intended to deny the fact that the fact, the core of the issue without clear legal basis, is the "one house for one household" only for the house transferor and impose heavy taxation. Therefore, the instant disposition is obviously unlawful in violation of Article 2(2) of the Restriction of Special Taxation Act, since non-taxation practices were established by failing to impose long-term taxation on the instant officetels. In addition, the notice of heavy taxation based on whether it is actually used for residence at the time of a tax investigation is against the consistency of the substance over form principle and is against the protection of the legal stability and predictability of the taxpayer. Accordingly, there is a ground for retrial in the judgment subject to a retrial, i.e., a lack of judgment on important matters that may affect the judgment

B. Determination

According to Article 451(1)9 of the Civil Procedure Act, when a judgment on a material fact that may affect a judgment is omitted, a suit for a retrial may be instituted against a final judgment rendered, but if a party asserts, or does not know, the grounds for retrial by an appeal, a suit for retrial may not be instituted (proviso of Article 451(1) of the Civil Procedure Act). The same applies to a case where an appeal against a judgment subject to retrial was dismissed by a judgment of non-trial proceedings under Article 4 of the Act on Special Cases Concerning the Procedure for Appeal (see, e.g., Supreme Court Decision 2014Da50944, Nov.

However, in the petition of final appeal on December 0, 2017, the plaintiff denied the matters confirmed as the "one house for one household" as the grounds for final appeal against the judgment subject to a retrial, and applied the concept of "one house for one household" differently from the Restriction of Special Taxation Act; applied the same legal provisions only to the transferee and the transferor; in violation of the "the principle of good faith", the plaintiff's assertion of the grounds for final appeal in this case that, even though the "non-taxation practice" was established for the instant officetels, it would result in infringing on the legal stability and predictability of the economic activities of the people, and the fact that the plaintiff's final appeal was dismissed by a judgment that was rejected by a trial due to a lack of trial. Therefore, the plaintiff cannot file a lawsuit for retrial by putting the omission of judgment subject to

Therefore, it cannot be deemed that there are grounds for retrial under Article 451(1)9 of the Civil Procedure Act.

3. Conclusion

Thus, the lawsuit of this case is unlawful and dismissed.