[2] In a case where the tax authority revoked the detailed statement of global income for the year 191 and imposed the same tax base after changing the global income tax and the defense tax amount for the same tax base from the year 1990, the case holding that the tax authority may seek revocation of the changed tax disposition without a separate previous trial procedure

[3] The meaning and standard of determining the occurrence of income as an object of taxation of income tax

[4] The time when the right to income established by a lawsuit is confirmed

[2] In a case where the tax authority revoked the above disposition during the course of a lawsuit for cancellation of the global income tax detailed and disposition for which 1991 is the year to which the pertinent disposition was reverted and imposed the global income tax and defense tax by changing the year to 1990, the case holding that the taxpayer may seek revocation of the disposition without going through the previous trial procedure for the disposition for imposition of global income tax as well as the defense tax without going through the previous trial procedure, on the ground that it is harsh that, in addition to the cases where the taxpayer is dissatisfied with the same illegal grounds as the disposition for imposition of global income tax in relation to the disposition for imposition of global income tax, and when the tax authority changed the disposition after filing the lawsuit for the initial disposition subject to the lawsuit as mentioned above, and that there was a prior opportunity for the Commissioner of the National Tax Service and the National Tax Tribunal to judge the facts subject to the imposition of global income tax,

[3] In order to ensure that income subject to income tax has been realized, even if it is not necessary until such income has been realized, it shall be considerably mature and finalized in terms of the possibility of realizing the right to generate income. Therefore, it shall not be deemed that there has been income in the mere process of establishing a complex without such a degree. Whether the right to generate income is mature or finalized or not shall be determined by comprehensively taking into account the nature or content of each specific right and various matters of law and fact-finding.

[4] Where a dispute arises between a payer of income and a beneficiary about the existence and scope of claims, and such dispute cannot be deemed to be obviously unfair in light of the circumstances surrounding the dispute and the nature of the case, the right to an income cannot be deemed to have become final and conclusive, and the right shall be deemed to have become final and conclusive at the time the judgment

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below determined that the defendant revoked the above disposition and imposed 39,036,390 won on the same tax base as global income tax in 190 on the ground that the defendant's sales agent income was generated from the sales agency's sales agency contract with the non-party Woo Construction Co., Ltd. (hereinafter referred to as the "non-party company") and imposed 38,118,380 won as global income tax in 191, and the plaintiff filed the lawsuit of this case seeking revocation through the preceding trial procedure. Since the defendant did not go through the preceding trial procedure, the court below determined that the second instance court's disposition was unlawful as to global income tax in 190 and the amount of 7,807,270 won as global income tax in 190 as well as 39,036,390 won and 390 won defense tax in 190, and that the plaintiff sought revocation of the above disposition of global income tax and its cause had not gone through the preceding trial procedure.

However, in a case where the tax authority changed the disposition subject to the disposition while the appeal procedure was in progress, and the reason for such change is common, the Commissioner of the National Tax Service and the National Tax Tribunal were given an opportunity to re-determine the basic factual relations and legal issues as to the preceding disposition, and where there are reasons such as where it seems that the taxpayer would be harsh to make the taxpayer under the preceding trial procedure, the taxpayer may file an administrative lawsuit seeking the revocation of the disposition without going through the preceding trial procedure (see, e.g., Supreme Court Decisions 88Nu7996, Nov. 10, 1989; 90Nu2383, Oct. 12, 1990; 91Nu247, May 24, 191; 2000). According to the records, the court below determined that the first disposition subject to the imposition of global income tax was identical to that of the global income tax, and that the defendant had already changed the opportunity to seek the revocation of the disposition subject to the preceding taxation to the tax base for global income for which he belongs to the preceding tax year.

Nevertheless, the lower court’s determination that the part of the instant lawsuit seeking revocation of the imposition of the defense tax is unlawful because it did not go through the procedure of the preceding trial is erroneous in the misapprehension of legal doctrine as to the principle of adjudication prior to the trial. The grounds for this point are with merit.

2. On the second ground for appeal

According to the reasoning of the judgment below, on February 6, 190, the plaintiff sold at least 80% of the total sales area to the non-party company's new commercial building up to 28th of the same month, and deposited at least 80% of the total sales amount to the non-party company by April 30 of the same year, the court below concluded a contract for sales agency with the non-party company to receive a sales agency fee from the non-party company, but agreed on February 19 of the same year to extend the period for sales in lots and payment by May 31 of the same year when the plaintiff started sales in lots on February 19 of the same year. Accordingly, the court below determined that the non-party company's right to receive 95% of the total sales amount from the non-party company was reduced to 51,00,000 won as sales agency fees, and that the plaintiff's right to receive 90% of the total sales amount was terminated to 90.20% of the total sales amount, 1991.

However, in order to ensure that income subject to income tax has been realized, even if it is not necessary until it is realized in reality, the right to receive income is considerably mature and confirmed in the possibility of realizing the income. Therefore, it cannot be deemed that there has been income in merely formed without such a degree. Whether the right to receive income is mature or finalized or not shall be determined by comprehensively taking into account the nature and content of each specific right and various legal and de facto facts (see, e.g., Supreme Court Decisions 87Nu828, Nov. 24, 1987; 92Nu4048, Jul. 14, 1992; 92Nu4048, etc.). In particular, where disputes arise between a payer of income and a beneficiary over the existence and scope of a claim, and such dispute cannot be deemed to have become final and conclusive when the right to receive income becomes final and conclusive in light of the circumstances and nature of the case (see, e.g., Supreme Court Decision 2009Nu7889, Sept. 28, 1987).

According to the facts established by the court below, the plaintiff and the non-party company dispute over the existence and scope of the remaining claims of the sales agency fees, and further, the scope of the claims was determined by judgment in the 1992, and it does not seem to be clearly unfair dispute in light of the circumstances and nature of the dispute indicated in the records. Thus, it cannot be deemed that the above claims were already finalized on May 31, 1990 when the sales agency services were completed.

Nevertheless, the lower court determined that the Plaintiff’s right to obtain the above fee upon the completion of the sales agency business is final and conclusive. It erred by misapprehending the legal doctrine on the determination of taxable income subject to taxation, thereby adversely affecting the conclusion of the judgment. The ground for appeal assigning this error is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)