Whether it can be deemed that the previous judgment has become final and conclusive when there is no capital gains in accordance with the ex post facto Act.

Since the res judicata of a final and conclusive judgment to revoke a tax disposition is limited to the grounds for illegality established by the final and conclusive judgment, a new taxation disposition that was made by the tax authority to supplement the grounds for illegality established by the final and conclusive judgment is separate from the previous taxation disposition and

Article 94 (Scope of Transfer Income Tax of the Gu)

Article 157 (Scope of Land, etc.)

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 65,228,813 against the Plaintiff on October 1, 2007 is revoked.

1. Basic facts

A. On December 31, 1999, the Plaintiff owned 44,760 shares (4.9% of the total issued shares) of ○○ synthetic Industries Co., Ltd. (hereinafter referred to as “○○ synthetic Industries Co., Ltd.”), a stock-listed corporation. On December 31, 199, the Plaintiff transferred 79,038 shares (hereinafter referred to as “instant shares”) on several occasions through the securities market in 2000, but did not report and pay the transfer income tax.

B. Accordingly, pursuant to Article 94 subparag. 3 of the former Income Tax Act (amended by Act No. 6292 of Dec. 29, 200, hereinafter the same), and Article 157(4) subparag. 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17032 of Dec. 29, 2000, hereinafter the same), the Defendant: (a) on December 31, 1999, the Plaintiff constitutes a major shareholder (not less than 3% of the total issued shares) of the non-party company as of December 31, 199; (b) calculated the transfer value of the instant shares with the acquisition value of KRW 1,216,610,00 and the acquisition value of KRW 91,42,000; and (c) calculated the transfer income tax on February 17, 200; (d) calculated the transfer income tax on KRW 606,204,201 (the acquisition value of the shares as at first 96.6).

C. The Plaintiff filed a lawsuit seeking revocation of the above disposition with the Seoul Administrative Court 2004Gudan10800. At that time, the Plaintiff asserted that the above disposition was unlawful, since all securities companies at the time of the sale and purchase of the instant shares were to have first transferred the shares acquired in the first time in the transfer of the shares issued by Nonparty Company (hereinafter “○○ Securities Company”) and ○○ Securities Company (hereinafter “○○ Securities Company”) (hereinafter “○○”) upon adoption of the ex post facto withdrawal method in the shipping method deposited with the Korea Securities Depository, even though the Plaintiff sold the shares acquired in the first time in the transfer of the shares issued by Nonparty Company, the Defendant deemed otherwise to have first transferred the shares acquired in accordance with the first instance method and calculated transfer margin.

D. Although the plaintiff lost in the first instance court in the above lawsuit, the appellate court's judgment was revoked on December 21, 2006 and the judgment seeking revocation of the above disposition became final and conclusive upon dismissal of the defendant's appeal on April 13, 2007. The reasons for the above appellate court's judgment were not only ○○ Securities and ○○ Securities traded by the plaintiff, but also ○○ Securities and ○○ Securities, which were traded by all securities companies after January 1, 1998, and managed the shares acquired later in accordance with the ○○ Shipping Act as first transfer of the shares acquired later. Thus, it is unlawful to deem that the shares of this case were transferred first, and calculated acquisition value by considering the above otherwise, it is not possible to revoke the legitimate tax amount imposed lawfully by the materials submitted until the conclusion of the fact-finding trial, and it is not possible to revoke the acquisition value of the shares in this case for the purpose of legitimate disposal of the capital gains tax as well as the acquisition value of the shares in this case.

E. On October 1, 2007, the Defendant again calculated the acquisition value of the shares of this case as KRW 993.805,500, and accordingly, issued the instant disposition imposing KRW 65,228,810 (including additional tax, less than KRW 10,00) as transfer income tax for the year 2000.

[Reasons for Recognition] Evidence Nos. 1 through 6, Evidence No. 1, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The Plaintiff asserted and presented evidence that there is no transfer margin in the case of the following prior suit. At the time, the Defendant did not go against all, and thus, the fact that there is no transfer margin in the case of the following prior suit shall be deemed as final and conclusive in the above judgment. However, the instant disposition that deemed otherwise unlawful is deemed unlawful.

(2) The Plaintiff’s shares disposed of in 2000 shall be deemed to have been disposed of in sequence since 1997, which are the shares first acquired, in accordance with the ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto sales

(b) Related statutes;

Article 94 (Scope of Transfer Income Tax of the Gu)

Article 157 (Scope of Land, etc.)

C. Determination

(1) Determination on the assertion of the above A. (1)

The res judicata effect of a final and conclusive judgment revoking a tax disposition is limited to the grounds for illegality that have arisen out of the final and conclusive judgment, and a new tax disposition, which has been made by the person having the right to taxation disposition supplementing the grounds for illegality, is separate from that of the previous tax disposition revoked by the final and conclusive judgment, and does not conflict with the res judicata effect of the final and conclusive judgment (see, e.g., Supreme Court Decision 2000Du

위 서울고등법원 2005누27613 판결이 지적한 2004. 2. 17.자 과세처분의 위법사유는 이 사건 주식의 취득가액을 선입선출법에 의해 산정한 것에 위법이 있다는 것이었으므로 피고가 그 취지에 따라 이 사건 주식의 취득가액을 후입선출법에 의해 산정하여 이 사건 처분을 하는 것이 확정판결의 기판력에 반한다고 볼 수 없을 뿐만 아니라, 위 판결이 2004. 2. 17.자 과세처분 전부를 취소한 것은 이 사건 주식의 취득가액을 후입선출법에 따라 산정할 수 있는 객관적인 자료가 제대로 제출되지 아니하여 정당한 양도소득액을 산출할 수 없다는 데에 따른 것이었을 뿐 후입선출법에 따를 경우 양도차익이 존재하지 않음을 그 이유로 한 것이 아니어서 후입선출법에 따를 경우 양도차익이 존재하지 않는다는 사실관계과 확정되었다고 볼 수도 없으므로 위 주장은 이유 업삳.

(2) Determination on the assertion of the above A. (2)

The plaintiff's above assertion is premised on the method of deeming that the latter part of the company's shares acquired first is "the last transfer of the shares." However, since the latter part of the company's shares shall be deemed to have been transferred first, it cannot be deemed that the method alleged by the plaintiff is a calculation method in accordance with the latter part of the company's shares, and in addition, considering the overall purport of pleadings in each part of the evidence Nos. 3, 4, and 5, it can be recognized that if the acquisition value of the shares of this case is calculated in accordance with the latter part of the company's shares as if the plaintiff later acquired the shares of this case as at the time of transfer of the shares of this case as at the time of acquisition of the non-party company's shares, the disposition of this case is legitimate, and the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is dismissed as it is without merit, and it is so decided as per Disposition.