Plaintiff and Appellant

Gangwon A

Defendant, Appellant

Korea

The plaintiff shall bear the total costs of the lawsuit after the appeal.

Cheong-gu and purport of appeal

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff the amount of KRW 0,00,000,000 with 5% per annum from January 1, 2008 to the day on which the copy of the complaint of this case is served, and 20% per annum from the next day to the day of complete payment.

The court's explanation on this part is identical to the entry of "1. Recognition" and "2. related Acts and subordinate statutes" on the grounds of the judgment of the court of first instance, except for the corresponding parts of the judgment of the court of first instance as follows, and therefore, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

(a) Change of the attachment of 4, 7, and 8 "the attachment of this case" to "the preservation and seizure of this case"

(b) “Disposition imposing the transfer income tax of this case” in 4, 12, 12 through 15, and 7, respectively.

Each disposition of this case revised by "the taxation of this case"

(c)each of the defendants listed above 5, 6, and 7 shall be amended to the Head of Sungdong Tax Office.

D. From 7 pages 3 up to 7 pages 7 up to 7 pages 3, the modifications are as follows:

On December 27, 2007, the Plaintiff closed the said business, respectively, on December 31, 2007, and on December 31, 2007, respectively.

(e) Change of 7 pages 6 " March 12, 2009" to " March 9, 2009"

F. On the seven pages, the following modifications are made: “former Income Tax Act (amended by Act No. 7120, Jan. 29, 2004; hereinafter the same)”:

former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter the same shall apply)

(g) 8. The following shall be followed:

In case where a resident makes a preliminary or final return on the tax base of transfer income under Article 96 (1) 6 and the proviso of Article 97 (1) 1 (a), if the returned value is different from the fact and the director of the regional tax office having jurisdiction over the place of tax payment or the director of the regional tax office confirms the actual transaction price, such confirmed value shall be the transfer value or

(h)a modification to the last nine pages of the National Tax Collection Act through 10 pages 1 of that Act, as follows:

former National Tax Collection Act (Amended by Act No. 10527, Apr. 4, 2011; hereinafter the same shall apply)

2. Summary of the plaintiff's assertion

A. The instant taxation disposition is unlawful, and the judgment revoking the entire taxation disposition in an appeal litigation filed by the Plaintiff became final and conclusive, and thus the national tax to be collected by the preservation and seizure of this case is not determined. Therefore, the execution of the preservation and seizure of this case is unfair. Unless there is any special proof, it is presumed that the public official in charge of the tax authority has intentionally or negligently

However, in this case, ① as long as ChoB who is a party to the first exchange contract with the Plaintiff makes an appraisal of 0,00,000 won, the transfer value shall be deemed to be 0,000,000 won, and even though the above 0,000,000 won cannot be considered to have different objective values, the public official in charge of the taxing authority arbitrarily denies the transfer value which is the actual agreed price between the parties concerned without any legal basis; ② In the case of exchange without market price appraisal, the public official in charge of the taxing authority calculated and taxed the actual transaction value by estimation without disregarding the established precedents of the Supreme Court that should calculate the transfer income tax base based on the standard market price; ③ in this case, even though the estimation requirement of the actual transaction price under Article 114(5) of the Income Tax Act and Article 176-2(1) of the Enforcement Decree of the same Act is not satisfied, the public official in charge of the taxing authority calculated the actual transaction price of 000 won, more than the actual transaction price of 0000 won, more than the actual market price of forest.

B. In addition, the National Tax Collection Act only lists the cases where national taxes can be seized before the determination of national taxes (hereinafter referred to as “collection”). (Articles 24(2) and 14(1) of the same Act should be approved in advance from the director of a regional tax office with respect to the preservation and seizure (Article 24(3)), and taxpayers must be notified in writing (Article 24(4)). If a person subject to the seizure fails to determine the national taxes to be collected by the seizure within three months after the date of request for the cancellation of the seizure (Article 24(5)1), it is difficult for the tax authority to immediately release the seizure from the seizure, in view of the provisions of this Act and the purport of Article 23(1) of the Constitution that guarantees the freedom of property rights of citizens, and thus, it should be deemed that the tax authority’s act was unlawful by misunderstanding the existing provisions that stipulate that it should not be deemed that there is an unlawful act of tax evasion, such as those of the National Tax Collection Act, and thus, it should be deemed that it should be unlawful.

D. In addition, the proviso of Article 57 of the Framework Act on National Taxes provides that "if the pertinent ruling authority deems it necessary, the pertinent ruling authority may suspend or suspend the execution of the disposition." In this case, the Tax Tribunal could suspend ex officio the preservation and seizure of the Plaintiff on the basis of the above provision. In addition, pursuant to Article 17 (1) of the National Tax Collection Act, when the taxpayer suffers significant loss in business after the notice or demand of tax payment.

Where the business faces a serious crisis;

According to Article 19(3) of the same Act, the head of a tax office may defer the collection of national taxes or delinquent taxes by fixing the deadline for payment again, and during the grace period, the provisions stipulate that delinquent taxes shall not be imposed on the deferred national taxes or delinquent taxes, which impose on the tax authority the duty to protect the rights and interests of the individual taxpayers entirely or incidentally." However, although the plaintiff's assertion was accepted in the procedures such as a request for pre-assessment review, a tax appeal, or a lawsuit seeking cancellation of the tax disposition in this case, the tax authority did not take any measures such as deferment of collection at all, but did not delay the plaintiff's rights in bad faith, such as disregarding the re-audit decision made by the Tax Tribunal and disputing the cancellation decision by appeal and appeal.

E. Therefore, the Defendant’s series of exercise of public power, which is subject to the instant taxation, the preservation and seizure of the instant case, and the review according to the decision of the Tax Tribunal and maintained the previous disposition, constitutes unlawful acts committed by the public official’s intentional or negligent act. As a result, the Plaintiff closed down 00 telecom lease business and 000 stores, and thereby, incurred damages equivalent to KRW 0,000,000,000 as follows, such as the sale of 00 telecoms and 00 apartment houses at the intermittent value. Accordingly, the Defendant has the obligation to pay the Plaintiff part of the damages amounting to KRW 0,000,000 (i.e., partial KRW 00,000,000 among property damage + partial KRW 000,000 among solatium damages) and its delay damages.

Classification

Details

Damages

00 Damage by sale at low price

Appraisal Value: 0,000,000,000 won

Auction Price: 0,000,000,000

00,000,000 won

00 Loss from the sale of low-priced apartments

Appraisal Value: 00,000,000 won

Auction Price: 00,000,000 won

00,000,000

00 Mael Rental Business Closure Damage

Rent: 00,000,000 won per month;

Financial Costs: 0,000,000 won per month;

Period: 96 months (from January 1, 2008 to December 31, 2015)

00,000,000 won

[=(00,000,000 won - 0,000,000)] x 96 months]

000 Loss from the closure of a store

Facility takeover amount: 00,000,000 won

Business Premium: 00,000,000 won

Rental Deposit: 00,000,000 won

Loss: 00,000,000 won

(i) Average monthly income of 0,000,000 x 96 months

00,000,000 won

consolation money

00,000,000 won

00,000,000 won

Total

0,000,000,000

3. The judgment of this Court

A. Even if a certain administrative disposition is cancelled in an appeal litigation after the judgment of res judicata, it cannot be readily determined that the pertinent administrative disposition was caused by a public official’s intentional or negligent act and constitutes a tort. In light of the public official’s standard, it shall be reasonable to deem that the public official in charge of the pertinent administrative disposition satisfied the requirements for State’s liability under Article 2 of the State Compensation Act in a case where it is recognized that the administrative disposition has lost objective legitimacy by neglecting objective duty of care. In such a case, whether the administrative disposition has lost objective legitimacy shall be determined by taking into account all the circumstances such as the type and nature of the gains of infringement, the form and reason of the administrative disposition that constitutes the infringement, the degree of the victim’s involvement in the exercise of the administrative disposition, and the degree of damages (see, e.g., Supreme Court Decisions 9Da7060, May 12, 2000; 200Da31018, Jun. 11, 2004).

Therefore, even if an administrative agency’s exercise of a certain opinion before the establishment of the interpretation of the relevant Acts and subordinate statutes, which led to the occurrence of an unfair enforcement of the relevant Acts and subordinate statutes, if it was difficult to expect that it would be an average public official in good faith at the time of the disposition, it shall not be deemed that it would result from a public official’s negligence, barring any special circumstances (see, e.g., Supreme Court Decisions 95Da32747, Oct. 13, 1995; 2002Da31018, Jun. 11, 2004). However, if the interpretation of the relevant Acts and subordinate statutes is established in the judgment of the Supreme Court, and it is possible for the superior administrative agency or the competent administrative agency to sufficiently recognize it through work guidelines or contact with the established laws and subordinate statutes, and thus, if the other party continues to conduct an illegal administrative disposition or to suffer any disadvantage that may be assessed as an act corresponding thereto, it shall be liable for damages arising therefrom (see, e.g., Supreme Court Decision 2008Da58585.

B. First, according to the facts admitted by the court of first instance, it can be acknowledged that the judgment revoking the instant taxation in an appeal litigation claiming the revocation of the instant taxation disposition, etc., was rendered and confirmed. However, in light of the aforementioned legal principles, such circumstance alone is insufficient to readily conclude that the instant taxation disposition constitutes tort on the grounds that the pertinent tax disposition was due to the intention or negligence of the public official

C. Next, in relation to the preservation and seizure of this case, whether the requirements of Article 24(2) and Article 14(1)7 of the National Tax Collection Act are met." According to the facts of recognition of the judgment of the first instance court cited by the court, the plaintiff reported the transfer value of 000 real estate under the first exchange contract for 200 years on October 30, 2002 based on the actual transaction value, and on the preliminary return for 00,000 real estate acquisition value for 00,000 commercial buildings under the second exchange contract for 200,000 commercial buildings for 00,000 commercial buildings for 200,000 commercial buildings for 200,000 commercial buildings for 20,000 commercial buildings for 20,000 commercial buildings for 20,000 commercial buildings for 1 exchange contract for 100,000 commercial buildings for 20,000 commercial buildings for 20.

In fact, the Plaintiff reported and paid only KRW 00,000 as transfer income tax for the year 2004 on the basis of the above content. However, even if the Plaintiff followed the content of his own calculation in the court prior to remand, the reasonable amount of transfer income tax calculated based on the standard market price is at least KRW 00,000,000. Therefore, the Plaintiff’s under-reported return of a considerable amount of transfer income tax cannot be denied, and it cannot be deemed that the Plaintiff erred in misunderstanding the purport of law in tax return method, such as the Plaintiff’s assertion, thereby filing a wrong return, or when there is room for diverse interpretation due to unclear provisions of tax law.

Therefore, the requirement of "when it is deemed that there is an act of evading national taxes once of the preservation seizure of this case" is satisfied, so it cannot be deemed illegal because the preservation seizure of this case does not meet the requirement of the preservation seizure before the confirmation. Next, it is examined whether the defendant is liable to compensate for damages caused by the illegal preservation seizure of this case because the whole or part of the national taxes to be collected by the preservation seizure after the preservation seizure of this case are not finalized.

1) Article 24(2) of the National Tax Collection Act provides that the head of a tax office may seize the taxpayer’s property to the extent of the estimated amount of national taxes, if he recognizes that the taxpayer cannot collect national taxes after the determination of national taxes due to the reasons for collection before the payment period.

If the whole or part of the national taxes to be collected by the preservation and seizure was not determined after the preservation and seizure became final and conclusive, it shall be presumed that there was intention or negligence on the part of the public official in charge of the tax authority, barring any special proof as to the damage inflicted on the taxpayer due to the preservation and seizure. Therefore, the State is liable to compensate for the damage caused by unfair preservation and seizure. This legal principle applies likewise to cases where a national tax was determined once by a taxation disposition after the preservation and seizure, but the said taxation disposition was revoked, and the whole

The plaintiff and ChoB entered into the first exchange contract on May 7, 2002 to exchange original real estate and original commercial buildings, etc. On October 26, 2004, the plaintiff and JeonCC entered into the second exchange contract with the original commercial buildings on which the tax authorities did not impose capital gains tax on 00 Mobs, etc. on November 15, 2007, and the tax authorities imposed capital gains tax on 200 Mobs, etc. on which the tax authorities did not impose capital gains tax on 200 Mobs, etc. on which the tax authorities imposed capital gains tax on 200 Mobs, etc. on which the tax authorities imposed capital gains tax on 200 Mobs, etc. on which the tax authorities imposed capital gains tax on 200 Mobs, which were not imposed on 90 Mobs, 200 Mobs, 200 Mobs, 200 Mobs, 2008.

2) As to this, the Defendant asserts that the tax authority has a special reason to deny the public official in charge of the preservation of the instant case’s seizure by intention or negligence.

According to the findings of the judgment of the court of first instance cited by this court, the tax authority calculated the actual transaction price by applying the provision of estimated tax based on the real estate acquired not the real estate acquired by the plaintiff but the exchange difference based on the method of estimating the evaded tax amount or calculating the above notified tax amount. However, in this case according to the final judgment of the lawsuit seeking revocation of the tax disposition in this case, the standard market price, not the actual transaction price, should be applied. Thus, it can be acknowledged that the method of calculating the above amount

However, in light of the following facts and circumstances, it is reasonable to view that the tax authority has a special reason to deny the public official’s intentional act or negligence in the preservation of the seizure of this case, and such presumption should be deemed to have been reversed.

(1) Although the provisions of Article 96 (1) and Article 97 (1) 1 (a) of the Income Tax Act provide, in principle, that the transfer value and acquisition value of assets under Article 94 (1) 1 and 2 of the same Act shall be based on the standard market price at the time of transfer and that at the time of acquisition, and exceptionally, Article 96 (1) 6 and the proviso of Article 97 (1) 1 (a) of the same Act provides, one of the actual transaction values at the time of transfer and that at the time of acquisition shall be reported to the head of the district tax office having jurisdiction over the place of tax payment by the deadline for final return on tax base of transfer income, and Article 114 (4) of the Income Tax Act provides, "Where the transfer value and the tax amount are determined or revised by the method prescribed by the Presidential Decree after the date of transfer or acquisition of the real estate are determined or revised, the transfer value and the transfer value at the time of transfer or acquisition value shall be determined by the standard market price at the time of transfer or acquisition value.

According to this, if a taxpayer files a return on the actual transaction price, if the value is different from the fact, the tax authority may investigate the actual transaction price and impose tax accordingly. In the case of real estate for not more than one year after its acquisition, the transfer price of assets can be the actual transaction price. The Plaintiff made a preliminary return of transfer income tax on the actual transaction price, not the standard market price, while transferring the real estate of the original type, which became one year after the acquisition of the first exchange contract. The Plaintiff made a preliminary return of transfer income tax on the secondary exchange contract as the actual transaction price, not the standard market price. The tax authority calculated the transfer price based on the actual transaction price pursuant to Article 96(1)

(2) In addition, the tax authority's application of the actual transaction value in this case should be interpreted as an example of the procedure for settling the market price of the object, in particular, if the transaction is an exchange, and the market price of the object is appraised based on the value of the object to be exchanged, and thus the objective value of the object is a standard for calculating the difference in the appraisal value, etc., the actual transfer value can be confirmed. However, in the case of a simple exchange that is not so, the actual transfer value cannot be confirmed. (Supreme Court Decisions 96Nu860 delivered on February 11, 1997; 98Du19841 delivered on November 26, 199). Thus, in the case of an exchange of the value of the object to be exchanged, the court can determine that the actual transaction value can be confirmed if it is an exchange of the value of the object without any prior to the market price assessment in the process of calculating the actual transaction value without any prior to the market price assessment (see, e.g., Supreme Court Decision 98Du19841 delivered on November 26, etc.).

Rather, the assessment of this case was supported by the decision of the National Tax Tribunal (as of April 4, 2007, Supreme Court Decision 2006Du3489, Dec. 21, 2007; Supreme Court Decision 2007No2460, Dec. 21, 2007; Supreme Court Decision 2007Du2460, Apr. 21, 2007; Supreme Court Decision 2007Du2460, Apr. 21, 2007) to the effect that if the assessment of capital gains pursuant to the actual transaction price in this case was conducted based on the mutual assessment of real estate subject to exchange and the settlement was conducted through cash payment, it is reasonable to calculate the actual transaction price on the basis of the agreed assessment price at the time of exchange. Therefore, it cannot be deemed that the taxation authority’s calculation of capital gains according to the actual transaction price in this case was against the interpretation of the statutes

On the other hand, Article 114 (5) of the Income Tax Act provides that where it is impossible to recognize or confirm the actual transaction price in the case of taxation based on the actual transaction price, the estimated taxation (the sale price, appraisal price, conversion price, and standard market price) may be made, and Article 176-2 (1) of the Enforcement Decree of the Income Tax Act provides that "where there is no account book, sales contract, receipt or other document necessary to confirm the actual transaction price at the time of transfer or acquisition, or where there is no material part thereof (Article 114 (1))," "where the contents of account books, sales contract, receipt or other document are obviously false in the light of the transaction example, appraisal price assessed by the appraisal corporation under the Act on the Public Notice of Land Prices

However, as seen earlier, in a case where the view that the actual transaction price can be calculated based on the actual transaction price even if it is impossible to confirm the actual transaction price because it is difficult to view it as an exchange transaction accompanied with the market price appraisal and cash settlement as to the assets subject to exchange as seen in the instant case, if it is impossible to impose the additional tax on the ground that the requirements for the additional tax under Article 114(5) of the Income Tax Act and Article 176-2(1) of the Enforcement Decree of the Income Tax Act are not "non-existence or fraudulent" because it is a requirement for the additional tax under Article 114(5) of the Income Tax Act and Article 176-2(1) of the Enforcement Decree of the Income Tax Act, it cannot be determined that the taxation cannot be made because it is impossible to determine the transfer margin or the transfer income tax base, and thus, it cannot be concluded that the interpretation that the additional tax can be imposed through the theoretical and systematic interpretation of the established law was contrary to the established legal principles (Article 17(1)5) of the Income Tax Act.

(3) In calculating the actual transaction value, the Plaintiff asserts that the actual transaction value of the real estate acquired by the tax authority is clearly misunderstanding legal principles. However, in the case of the exchange of real estate under the Income Tax Act, there is no express provision on the method of calculating the actual transaction value, and rather, according to the relevant documents (No. 4) submitted by the Defendant, the actual transaction value of the assets transferred through the exchange means not the value of the transferred assets, but the value of the assets acquired as the price for the transfer of the assets. Therefore, it cannot be readily concluded that the actual transaction value calculated based on the real estate acquired by the tax authority as the price for the exchange is in contravention of the established legal principles." (4) Even if the tax authority assessed the actual transaction value of the real estate at the time of the first exchange as 0,000,000 won, the actual transaction value of the real estate at the time of the exchange is 00,000,000 won, which is less than the actual transaction value of the real estate at the time of the exchange, the Plaintiff’s actual transaction value cannot be viewed as the above 000,000,0,00.

In light of the following facts: (a) the tax authority made an appraisal of 00,000 won which is much higher than the standard market price of 00,000 won; (b) the tax authority made an appraisal of 100,000 won after the transfer of ownership to 00,000 won; (c) the tax authority made an appraisal of 200,000 won for 10,000 won for 20,000 won for 20,000 won for 30,000 won for 10,000 won for 4,000,000 won for 20,000 won for 20,000 won for 20,000 won for 3,000,000 won for 1,000,000 won for 3,000 won for 1,000 won for 2,00 won for 1,000 won for 6,000 won for 2,00 won for 7,00.

7) After the instant preservation seizure, the tax authorities imposed the instant tax disposition on February 5, 2008, and subsequently notified the correction and notification of KRW 00,000,000 as the transfer income tax for the year 2002, and KRW 00,000 as the transfer income tax for the year 2004, and the total notified tax amount of KRW 00,000,000 (= + 000,000,000 + 00,000,000) as the estimated tax amount for the preservation and seizure at the time of the instant preservation and seizure is not significantly different from the amount of evaded tax for the year 2002.

E. Finally, after the decision of the Tax Tribunal, we examine whether the taxation authority's maintaining the same taxation as the existing taxation disposition is unlawful.

According to the facts cited by the court of first instance, the tax Tribunal rendered a decision on May 25, 2009 that "the head of Sungdong Tax Tribunal rendered a disposition of imposition of capital gains tax of 000,000,000 won for the year 2002 to the claimant (the plaintiff) on February 12, 2008, and capital gains tax of 00,000,000 won for the transfer income tax of 204, which belongs to the transfer income tax of 2004, which belongs to the transfer income tax of 2004, which the claimant (the plaintiff) exchanged and acquired on May 7, 2002, and the actual transaction price of the original commercial building exchanged and transferred on October 26, 2004, the tax base and tax amount shall be corrected according to the results." However, the tax authority did not find the existing re-investigation of forest and land and the existing actual transaction price for the reason that it had not been maintained.

However, the above decision of the Tax Tribunal is just and acceptable in the method of calculating capital gains according to the actual transaction price by applying the provision of estimated taxation, but it is difficult to view it to the purport that the tax authority should re-examine the facts about the actual transaction price of some real estate and to change the existing taxation price in favor of the plaintiff. Thus, it cannot be viewed as unlawful on the ground that the tax authority maintained the existing taxation without any additional data on the actual transaction price after re-surveying

In addition, even if the tax authority did not ex officio take measures such as suspending the execution of the preservation and seizure of this case under the proviso to Article 57 of the Framework Act on National Taxes or suspending collection under Article 17 (1) of the National Tax Collection Act, or filed an appeal against the judgment revoking the disposition of this case, such circumstance alone cannot be deemed to constitute a tort. Moreover, there is no sufficient data to recognize that the tax authority had delayed the Plaintiff

(f) Reorganization;

If there are circumstances, the above series of dispositions and actions by the tax authorities cannot be deemed to constitute a tort. On a different premise, the prior Plaintiff’s assertion is without merit, without examining the scope of compensation for damages.

4. Conclusion

Therefore, the plaintiff's claim is without merit. The judgment of the first instance court with the same conclusion is just, and the plaintiff's appeal is without merit, and it is dismissed.