[1] The objective scope of res judicata of the judgment of revocation of taxation disposition, and whether a new taxation disposition violates res judicata of the final and conclusive judgment by supplementing the grounds for illegality arising from the final and conclusive judgment (negative)

[2] The case holding that where a disposition of imposition, such as global income tax, was entirely revoked by a final and conclusive judgment on the ground that the taxable income is not real estate rental income but interest income, the taxation authority's imposition disposition, such as global income tax, etc. again takes place within the scope of the amount imposed on the previous disposition, does not go against the final

[3] In the case of a re-disposition under Article 26-2 (2) of the former Framework Act on National Taxes, whether the exclusion period under Article 26-2 (1) of the same Act shall apply (negative), and the existence of a national tax administrative practice that makes it impossible to conduct

[4] Whether Article 17 (2) of the former Income Tax Act that does not recognize the deduction of necessary expenses in calculating interest income amount is unconstitutional (negative)

[5] Whether Article 183(4) of the former Enforcement Decree of the Income Tax Act concerning the procedure for imposing the aggregate taxation on property income (affirmative), and whether not only the relationship between the family subject to aggregate taxation by the tax payment notice and the family subject to aggregate taxation but also the relationship between the principal income earner and the tax amount calculated by adding the other income amount which could have been initially increased, excluding the income subject to aggregate taxation, exceeds the tax amount subject to the pertinent taxation (affirmative), and whether the defect of the tax payment notice regarding the pertinent taxation is cured (negative)

[1] Since res judicata of a final and conclusive judgment to revoke a taxation disposition is limited to the grounds for illegality established in the final and conclusive judgment, a new taxation disposition that supplements the grounds for illegality established in the final and conclusive judgment shall not conflict with the res judicata of the final and conclusive judgment, which is separate from the previous taxation disposition

[2] The case holding that where a tax authority imposed global income tax, etc. on the ground that the taxable income is not real estate rental income but interest income, and the tax authority imposed a global income tax, etc. again within the scope of the amount of tax imposed on the previous disposition after the disposition was completely revoked due to the final judgment, such disposition does not conflict with the binding effect of a final judgment or res judicata on the grounds that the previous disposition and the grounds for taxation are different from those of the final judgment

[3] In a case where the tax authority imposed a new taxation by mistake within one year after the judgment revoking the previous taxation on the grounds that the previous taxation was unlawful, the taxation authority did not apply the exclusion period under Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993), and the tax authority is only able to make a new disposition favorable to taxpayers, and it cannot be deemed that there exists a national tax administration practice that prevents taxpayers from taking any unfavorable disposition.

[4] Article 17 (2) of the former Income Tax Act, which does not recognize the deduction of necessary expenses in calculating interest income, does not excessively infringe the people's property rights, and does not violate the principle of no taxation without law or tax equality.

[5] Article 183(4) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 14467 of Dec. 31, 194) provides that when the principal income earner notifies the tax base and tax amount determined by adding the property income of the family subject to the sum of the total income amount to the global income of the principal income earner, the property income of each family subject to the sum of the assets shall be based on one tax payment notice, and it shall be additionally stated in the procedure for imposing the sum of the property income tax. Since this is a mandatory provision that specifies the procedure for imposing the sum of the property income tax, if a tax disposition was made by omitting the entry of the income subject to sum of assets, including the content of property income by family subject to sum of assets, the amount of the property tax for each family subject to sum of assets, and the amount of tax jointly and severally paid by the principal income earner, not only the relation to the family subject to sum of assets, but also the tax disposition is subject to cancellation due to unlawful disposition in relation to the principal income earner.

[1] Article 30 (1) of the Administrative Litigation Act / [2] Article 30 (1) of the Administrative Litigation Act, Article 4 (1) 1 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) / [3] Article 26-2 (1) and (2) of the former Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993) (see current Article 26-2 (2) 1 of the Framework Act on National Taxes), Article 18 (3) of the Framework Act on National Taxes / [4] Article 17 (2) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) (see current Article 16 (2) of the Income Tax Act), Articles 11, 23, and 59 of the Constitution / [5] Article 9 (1) of the former Framework Act on National Taxes (amended by Act No. 134 of Dec. 13, 194, 298

[1] Supreme Court Decision 85Nu229 delivered on February 24, 198 (Gong1987, 548 delivered on December 8, 198) 87Nu382 delivered on December 8, 198 (Gong198, 292), Supreme Court Decision 92Nu794 delivered on September 25, 1992 (Gong1992, 305 delivered on November 24, 1992) 91Nu10275 delivered on September 24, 197 (Gong1993, 289, 297Nu13059 delivered on February 11, 197) 96Nu13057 delivered on February 25, 197 (Gong1997Sang, 79Du97989 delivered on September 29, 209)

Plaintiff 1 and one other (Attorneys Kim Ba-young et al., Counsel for the plaintiff-appellant)

At the same time, the director of the tax office and one other (Attorney Cho Young-chul, Counsel for the plaintiff-appellant)

Busan High Court Decision 99Nu2284 delivered on June 23, 2000

The part of the judgment of the court below against the plaintiff 2 is reversed, and that part of the case is remanded to Busan High Court. The plaintiff 1's appeal is dismissed, and the costs of appeal are assessed against the same plaintiff.

1. The res judicata effect of a final and conclusive judgment revoking a taxation disposition is limited to the grounds for illegality that have arisen out of the final and conclusive judgment, and thus a new taxation disposition supplementing the grounds for illegality that have arisen out of the final and conclusive judgment is separate from the previous taxation disposition that has been 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 Decisions 92Nu794, Sept. 25, 1992; 91Nu10275, Nov. 24,

In the same purport, the court below determined that the disposition in this case was a new tax disposition that made the correction of illegal grounds in the final and conclusive judgment on the previous disposition, and did not violate the binding force or res judicata effect of the final and conclusive judgment on the ground that it did not violate the previous disposition, and it did not err in the misapprehension of legal principles as alleged in the grounds of appeal. Accordingly, the ground of appeal on this part is not acceptable.

2. In a case where the tax authority imposed a tax again by making a mistake within one year after the judgment revoking the previous tax assessment on the grounds that the previous tax assessment was unlawful, the exclusion period under Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993) is not applicable (see Supreme Court Decisions 93Nu4885 delivered on May 10, 1996, 2001Du9059 delivered on January 5, 2002, etc.).

In the same purport, the lower court’s determination that the exclusion period has not been exceeded since the instant disposition was imposed by supplementing the grounds for illegality established in the final judgment within one year from the date the judgment on the previous disposition revocation lawsuit became final and conclusive, is reasonable, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal, and the tax authority cannot be deemed to exist a national tax administrative practice that merely allows taxpayers to re-disposition favorable to the taxpayer, and that the taxpayer cannot re-disposition unfavorable to the taxpayer. Accordingly,

3. The court below held that the amount received by the plaintiffs from the non-party 1 shall be deemed interest income corresponding to the profits of non-business loans under Article 17 (1) 11 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994; hereinafter the same shall apply) and it shall not be recognized as business income corresponding to the profits earned by the plaintiffs in the course of engaging in the price business. The court below did not err by misapprehending the legal principles or violating the rules of evidence as alleged in the grounds of appeal. Accordingly, this part of the grounds

4. Article 17(2) of the former Income Tax Act, which does not recognize the deduction of necessary expenses in calculating interest income, does not excessively infringe the people's property rights, and does not violate the principle of no taxation without law or the principle of no taxation equality (see Constitutional Court Order 2000HunBa54 delivered on December 20, 2001).

The judgment of the court below to the same purport is correct, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal. Therefore, this part of the grounds of appeal

5. The court below found that the 1/2 of the rent income from the real estate located in Busan Jung-gu, Busan, was the leased income of Nonparty 2, the main income earner, and the above plaintiff, the main income earner, added it to his global income when adding it to his global income and filed a report of aggregate taxation of assets by joint signature with Nonparty 2, the family subject to aggregate taxation. The defendant Jung Jungsan District Tax Office, in accordance with the report, did not state the purpose of aggregate taxation of the real estate rental income of Nonparty 2 on the global income of the above plaintiff, but did not state the purpose of aggregate taxation of property income in the tax payment notice, i.e., the contents of property income of Nonparty 2, and the tax amount to be jointly and severally paid by Nonparty 2, the main income earner, but the above tax amount to be paid to the above plaintiff 2, the main income earner, was unlawful in that the above tax amount to be paid to the above plaintiff 2, the main income earner, and even if the above tax amount was calculated to the extent of the tax amount of the previous tax payment notice.

However, Article 183(4) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 1467 of Dec. 31, 1994) provides that when the principal income earner notifies the tax base and tax amount determined by summing up property income of families subject to sum up in the global income of the principal income earner, it shall be based on a single tax payment notice, but shall be additionally stated in the contents of property income by family subject to sum up of assets. Since this is a mandatory provision that specifies the procedure for imposing aggregate taxation on property income, if a tax disposition was made by a tax payment notice wherein the inclusion of income subject to sum up of assets, such as the content of property income by family subject to sum up of assets, the amount of tax to be jointly paid by the principal income earner and the amount of tax to be jointly paid by the principal income earner, such taxation disposition shall be subject to cancellation due to an unlawful disposition as well as in relation to the family subject to sum up of assets (see Supreme Court Decision 86Nu966, May 26, 1987).

Nevertheless, the court below erred by misapprehending the legal principles as to the notice of tax payment for property income aggregate taxation, thereby affecting the conclusion of the judgment, and the ground of appeal pointing this out is with merit.

6. Therefore, the part of the judgment of the court below against Plaintiff 2 is reversed, and that part of the case is remanded to the court below. Plaintiff 1's appeal is dismissed, and the costs of appeal against the dismissed appeal are assessed against the defendant and it is so decided as per Disposition

Justices Lee Yong-woo (Presiding Justice)