Seoul High Court 2010Nu15980 ( October 12, 2011)

Cho High Court Decision 2009west1483 (Law No. 9.30, 2009)

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The lawsuit of this case is unlawful since the period for filing a retrial under the Civil Procedure Act was imposed, and there is no ground for not applying the period for filing a retrial under the Civil Procedure Act to the tax imposition disposition that has a defect in the legality, and it is difficult to view that there is a defect in the pertinent tax imposition disposition, and

Article 456 of the Civil Procedure Act: Period for Filing Petition for Retrial

Seoul High Court 2015Reu 166 global income tax and additional disposition revocation

IsaA

○○ Head of Tax Office and one other

Seoul Administrative Court 2009Guhap30707 (2010.05.07)

2016.04.07

2016.05.12

1. All of the lawsuits filed by the plaintiff (the plaintiff for retrial) against the defendant (the defendant for retrial of this case) shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff.

Purport, purport of appeal and request for retrial

1. Purport of claim and appeal

The decision of the first instance court is revoked. The disposition of imposition of KRW 000 of the global income tax for the year 2004 against the plaintiff on September 1, 2008 by the defendant (the defendant, hereinafter referred to as the "defendant") (the defendant, hereinafter referred to as the "defendant") was revoked. The first instance court revoked the disposition of imposition of value-added tax for the second period of 2004 against the plaintiff on April 2, 2007 by the defendant (the defendant, hereinafter referred to as the "defendant") and then confirms that the disposition of imposition of the value-added tax for the plaintiff on April 2, 2007 is null and void.

2. Purport of request for retrial;

The judgment subject to a retrial and the judgment of the first instance is revoked. On September 1, 2008, the imposition of global income tax of 000 won for the Plaintiff in 2004 and the imposition of value-added tax of 000 won for the second period on April 2, 2007 by the head of ○○ Tax Office against the Plaintiff is confirmed to be null and void.

1. Determination of the original judgment

The following facts are significant or obvious to this court in terms of records:

A. The Plaintiff, as the representative of the Gold Industries chain BB (the opening date and time of business: November 1, 2001) located in ○○○○-dong, Seoul, 000 ○○○○-dong, the Plaintiff reported global income tax for 2004 and the value-added tax for 2 years, 2004, based on the purchase tax invoice 00 won (hereinafter “purchase tax invoice”) received from the Co., Ltd. (hereinafter “CC”), and filed each of the above global income tax and value-added tax for 00 won on the basis of the purchase tax invoice 00 (hereinafter “purchase tax invoice”).

B. The director of the Seoul Regional Tax Office confirmed the purchase tax invoice of this case as the purchase tax invoice purchased from data and notified the Defendants of the taxation data on the basis of the above taxation data. On April 2, 2007, the director of the Seoul Regional Tax Office: (a) deducted the input tax amount of the purchase tax invoice of this case from the purchase tax invoice of this case; and (b) corrected and notified the value-added tax of 2004 as 00 won by deducting the input tax amount of the purchase tax invoice of this case from the amount of the purchase tax invoice of this case (hereinafter referred to as the "value-added detailed disposition of this case"); and (c) on September 1, 2008, the director of the Seoul Regional Tax Office corrected and notified the total income tax amount of 00 won for the year 204 (hereinafter referred to as the "income tax imposition disposition of this case").

C. On July 23, 2007, the Plaintiff filed an objection against the instant supplementary detail and disposition, but was dismissed on September 20 of the same year. On November 7 of the same year, the Plaintiff filed an appeal with the National Tax Tribunal, which was dismissed on the ground that on December 28 of the same year, the Plaintiff filed an objection 90 days after being served with the notice of the instant supplementary detailed and disposition.

D. On November 11, 2008, the Plaintiff filed an objection against the instant disposition of imposing income tax, but was dismissed on December 23 of the same year. On March 2, 2009, the Plaintiff filed an appeal with the National Tax Tribunal, but was dismissed on April 30 of the same year.

E. On July 29, 2009, the Plaintiff filed a lawsuit against the Defendants on revocation of the imposition of global income tax and value-added tax by the Seoul Administrative Court 2009Guhap30707, but on May 7, 2010, the Plaintiff’s lawsuit against Defendant ○○ Tax Office was dismissed, and the Plaintiff’s claim against Defendant ○○ Tax Office was dismissed.

F. On January 12, 2011, the Plaintiff appealed as Seoul High Court No. 2010Nu15980, and the appellate court added the claim for confirmation of invalidity of the disposition imposing the additional tax to Defendant ○○○ Tax Office. However, on January 12, 2011, the Plaintiff’s appeal was dismissed, and the Plaintiff’s conjunctive claim against Defendant ○○ Tax Office was sentenced to dismissal, and the Plaintiff appealed as Supreme Court Decision No. 201Du4886, May 26, 201, but the judgment subject to the instant judgment became final and conclusive.

2. The plaintiff's assertion

A. Each of the dispositions of this case is invalid because the defendants erred in calculating the amount of tax in the imposition of the value-added tax in this case and the imposition of the income tax in this case (hereinafter referred to as the "each of the dispositions in this case"). As such, a lawsuit seeking nullification of the imposition of the tax in this case, which is a defect in legality, shall not be subject to the period for filing a retrial under Article 456 of the Civil Procedure Act (hereinafter referred to as "the first argument").

B. Where a purchase tax invoice is falsified, the court rendered a judgment without ex officio deliberation as to the tax amount calculated by deducting the sales amount calculated by multiplying the purchase tax invoice by a certain ratio, and without examining it by its own authority (hereinafter referred to as "the second assertion"). This constitutes "when the court omitted the judgment on important matters that may affect the judgment, which is the grounds for retrial under Article 451 (1) 9 of the Civil Procedure Act."

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

A. Determination as to the first argument

Article 456 (1) of the Civil Procedure Act provides that "a lawsuit for retrial shall be instituted within 30 days from the date when the party concerned becomes final and conclusive, and the grounds for retrial shall be known after the judgment becomes final and conclusive, and Article 8 (2) of the Administrative Litigation Act provides that "no special provision concerning administrative litigation shall be applied mutatis mutandis to matters concerning this Act".

Meanwhile, barring any special circumstance, it shall be deemed that a judgment that became the object of retrial was aware of the fact of the omission of judgment when it was served on a party or legal representative. Therefore, where a lawsuit for retrial was filed on the ground of the omission of judgment after the lapse of at least 30 days, which is the period for filing the petition for retrial, the lawsuit for retrial shall be deemed unlawful (see, e.g., Supreme Court Decisions 4292Da25, Jan. 25, 1962; 90Da18470, Mar. 12, 1991).

After the judgment subject to a retrial was rendered on January 12, 201 and the original copy of the judgment was served on the Plaintiff’s legal representative on January 19, 201, and thereafter, the judgment of dismissal was finalized by Supreme Court Decision 201Du4886 Decided May 26, 2011, and the facts that the original copy of the judgment of the said Supreme Court was served on the Plaintiff’s legal representative on May 31, 2011 are significant in this court. However, in light of the legal provisions and legal principles as seen earlier, the Plaintiff was served on January 19, 201, and the judgment subject to a retrial became final and conclusive by the Supreme Court’s ruling on May 26, 2011, and the said final judgment was served on May 31, 2011, and the Plaintiff should have filed a lawsuit for retrial pursuant to Article 25(1) of the Civil Procedure Act and Article 6(15) of the said Act for the period of retrial to the extent of 30 days later than 30 days.

The plaintiff alleged to the effect that the period for filing a retrial under Article 456 (1) of the Civil Procedure Act shall not be applied to a disposition of imposing a tax which is defective in legality, but there is no ground to acknowledge it, and the next B is difficult to view each disposition of this case as defective as seen in the above. Thus, the above argument is without merit.

B. Judgment on the second argument

In light of the proviso of Article 451(1) of the Civil Procedure Act, a lawsuit for a retrial against the judgment of the court of final appeal which became final and conclusive on the ground of appeal, which is alleged in the ground of appeal, cannot be filed, and if the judgment of the court of final appeal is omitted, it can be known if the original copy of the judgment was served on the original copy of the judgment, and the reasons for the judgment are read, barring any special circumstance, it can be known that there was omission in the judgment, and thus, if the original copy of the judgment of the court of final appeal was served on the original copy of the judgment, it could be asserted as the grounds for final appeal. Thus, barring any special circumstance, it cannot be brought a lawsuit for retrial. Ultimately, the judgment of the court of final appeal may not be a legitimate ground for final appeal, regardless of whether the omission in judgment was asserted as the grounds for final appeal (see, e.g., Supreme Court Decisions 70Da2688, Mar. 30, 1971;

The judgment subject to a retrial was rendered on January 12, 201 and the original copy of the judgment was served on the Plaintiff on January 19, 201, and the Plaintiff filed a final appeal with the Supreme Court on May 26, 201, but the judgment subject to a retrial became final and conclusive after the judgment was rendered on May 26, 201, and the original copy of the Supreme Court’s judgment was served on the Plaintiff on May 31, 201. In light of the above legal principles, the above facts constitute “when the Plaintiff did not assert the grounds for a retrial with the knowledge of the grounds for a retrial,” and the Plaintiff falls under “when the Plaintiff did not assert the grounds for a retrial,” and thus, cannot file a lawsuit for a retrial pursuant to Article 8(2) of

Furthermore, the Plaintiff’s assertion that the calculation of the tax amount of each of the dispositions of this case was unlawful, inasmuch as the purchase tax invoice is false, the sales amount calculated by multiplying the purchase tax invoice by a certain percentage is also deducted. However, in order to establish the Plaintiff’s above assertion, the Plaintiff did not engage in any transaction other than the transaction that received false purchase tax invoice at issue in each of the dispositions of this case, and the sales tax invoice corresponding to the amount on the false purchase tax invoice should be presumed to be false. Thus, the Plaintiff’s above assertion is without merit, on the grounds that there are no grounds therefor.

4. Conclusion

Therefore, since the plaintiff's lawsuit of retrial against the defendants is unlawful, it is so decided as per Disposition by the assent of all.