Supreme Court Decision 2007Du26520 (No. 13, 2010)

Review Transfer 2006-0015 (2006.04.03)

Whether it constitutes a ground for retrial

If, in the appellate trial on a judgment subject to a retrial, the grounds for such a request have already been asserted or did not have been knowingly asserted, it would be deemed that the appeal would not constitute grounds for a retrial, which would also be unlawful.

The contents of the decision shall be the same as attached.

1. The lawsuit of this case shall be dismissed.

2. The costs of the lawsuit for retrial shall be borne by the Plaintiff (Plaintiff).

The judgment of both the court of first instance shall be revoked. The defendant (hereinafter referred to as the "defendant") shall be the defendant (hereinafter referred to as the "defendant").

The disposition of imposition of capital gains of KRW 137,267,970 on December 12, 2005 against the plaintiff (hereinafter referred to as the "Plaintiff") shall be revoked.

1. Final and conclusive judgments subject to retrial;

The following facts are clear in records:

(a) Details of the disposition;

(1) On July 6, 2001, the Plaintiff acquired 33,500,000 square meters of land allotted by the authorities in recompense of development outlay 4 Dop 18 BB-dong, Incheon (hereinafter “instant land allotted by the authorities in recompense of development outlay”) from 33,50,000, and transferred the land to ChoCC and KimF on November 7, 2003.

(2) On January 31, 2004, the Plaintiff filed a preliminary return on capital gains on transfer of assets to the Defendant. At the time, the Plaintiff: (a) filed evidentiary documents, such as sales contract at the time; (b) reported that the actual transaction price of the land allotted by the authorities in recompense for development outlay was KRW 363,40,000, acquisition price of KRW 33,500,000; and (c) paid capital gains tax calculated accordingly.

(3) As a result of the tax investigation, the Defendant notified the Plaintiff of the tax investigation result notice on October 18, 2005 that the transfer date will correct the transfer income tax base and tax amount with the transfer amount confirmed on June 23, 2003 and August 19, 2003.

(4) After receiving the notice of the results of the tax investigation, the Plaintiff asserted that the right to acquire the instant land allotted by the authorities in recompense for development outlay was the right to acquire the real estate and reported as the actual transaction price. On November 30, 2005, the Plaintiff filed a revised return on the transfer value and acquisition value of the instant land allotted by the authorities in recompense for development outlay (hereinafter “the revised return of this case”) and additionally paid KRW 13,96,998 as the capital gains tax calculated accordingly.

(5) To this end, the Defendant issued the instant disposition that imposed capital gains tax of 137,267,976 won (the acquisition value was the same as the reported value) on the Plaintiff on December 12, 2005, on December 12, 2005, on the condition that the actual transaction value confirmed as a result of the tax investigation under the proviso of Article 114(4) of the former Income Tax Act (amended by Act No. 7837, Dec. 31, 2005) shall be applied to the actual transaction value confirmed as a result of the tax investigation. The Defendant: (a) deemed the transfer value of the land allotted for recompense of development outlay as KRW 363,40,00,000, not KRW 660,000, not KRW 363,400,000,000 which was initially reported by the Plaintiff; and (b) imposed on the Plaintiff each of the said capital gains

B. Determination of the original judgment

On April 25, 2006, the Plaintiff filed a lawsuit against the Defendant seeking the revocation of the instant disposition with the Seoul Administrative Court Decision 2006Gudan3721. The Seoul Administrative Court rendered a judgment against the Plaintiff on April 13, 2007 (the first instance judgment) and appealed against the Plaintiff, but the Seoul High Court dismissed the Plaintiff’s appeal as 2007Nu1232 decided December 4, 2007 (the instant judgment subject to a retrial) and again appealed against the said judgment (the instant judgment subject to a retrial). However, the Supreme Court dismissed the Plaintiff’s appeal as 2007Du26520 decided May 13, 2010 and became final and conclusive by dismissing the Plaintiff’s appeal as 207Du26520.

In light of the purport that the proviso of Article 96 (1) 6 and Article 97 (1) 1 (a) of the former Income Tax Act stipulates the completion period to be reported based on the actual market price as an exception to the principle of taxation of the standard market price within the period of the final return on the tax base of transfer income, and the relation between the scheduled return on the tax base of transfer income and the final return on the tax base of transfer income under the proviso of Article 114 (4) and Article 96 (1) 6 and the proviso of Article 97 (1) 1 (a) of the former Income Tax Act, the Supreme Court held that the "case where a preliminary return on the tax base of transfer income or the final return on the tax base of transfer income is made" means the case where the effect of the preliminary return on the tax base of transfer income or the final return on the actual market price is maintained by the time limit of the final return on the tax base of transfer income under the actual transaction price confirmed by the chief of the competent tax office, etc.

2. The plaintiff's assertion

Before the Defendant rendered the instant disposition, the Plaintiff did not have the authority to take the instant disposition as the Defendant had filed a revised report. Although the Plaintiff asserted as such, the original judgment did not have any authority to take the instant disposition, the Plaintiff filed an appeal against the judgment of the first instance court, without omitting any judgment on the assertion. Therefore, the original judgment constitutes grounds for retrial for omitting the determination under Article 451(1)9 of the Civil Procedure Act.

3. Whether the litigation for retrial of this case is legitimate

According to Article 451(1) of the Civil Procedure Act, which applies mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, a lawsuit for a retrial may be brought only when there are grounds for retrial limited to those stipulated under each subparagraph of Article 451(1) of the Civil Procedure Act. If it is merely a ground for retrial that does not constitute grounds for retrial, the lawsuit for retrial shall

In addition, according to the proviso of Article 451(1) of the Civil Procedure Act, a lawsuit for retrial cannot be brought again on the ground that the grounds for which a party had asserted or did not have asserted by an appeal. Thus, even in cases where a lawsuit for retrial was brought on the grounds falling under any subparagraph of Article 451(1) of the Civil Procedure Act, if a party had already asserted such grounds in the appellate court as to the judgment subject to retrial or had not knowingly asserted such grounds, it shall be deemed that it does not constitute a ground for retrial, and the lawsuit for retrial shall also be deemed unlawful (see, e.g., Supreme Court Decisions 93Da39553, Nov. 9, 1993; 91Da29057, Nov. 12, 1991). Accordingly, the judgment of the court below, which became final and conclusive as a ground for appeal, cannot be brought under Article 451(1)5 of the Civil Procedure Act without being aware of the existence of an omission in judgment in the judgment in the final appeal.

According to the above legal principles, in the case of this case where the plaintiff appealed against the judgment subject to a retrial and filed a final appeal by the Supreme Court, but the judgment subject to a retrial became final and conclusive by the Supreme Court, regardless of whether the plaintiff asserted in the final appeal as to the judgment subject to a retrial that the judgment was omitted from the judgment on important matters affecting the judgment (the plaintiff appears to have omitted the judgment on whether the defendant was entitled to take the disposition of this case in relation to the revised judgment of this case in the grounds for final appeal, on the grounds that the plaintiff did not make such assertion, the plaintiff may file a lawsuit for a retrial by making the omission of judgment in the judgment subject to a retrial,

4. Conclusion

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the retrial of this case.