It is unlawful in violation of res judicata of the preceding case.

When a judgment dismissing a claim for revocation of a taxation disposition becomes final and conclusive, res judicata has effect on the legal nature of the disposition, and thus, it cannot be claimed to nullify the invalidity of the final and conclusive judgment which is dismissed in the lawsuit for revocation of the taxation disposition, and the res judicata effect of the final and conclusive judgment upon the claim

Article 57 of the Value-Added Tax Act and Article 2 of the Certified Judicial Scriveners Act (Business Affairs)

2017Gudan58192 Nullification of a disposition of imposition of capital gains tax

AA

BB Director of the Tax Office

August 8, 2017

September 5, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant confirmed that the disposition of imposition of KRW 51,809,830 against the Plaintiff on August 22, 2013 is null and void.

1. Details of the disposition;

가. OO OO구 OO동 000-0 XXXX센터 000호 및 000호 상가(이하 '이 사건 부동산'이라 한다)에 관하여 2011. 6. 13. 경매를 원인으로 2011. 6. 17. 원고의 시어머니 CCC(2015. 4. 사망) 앞으로 소유권이전등기가 되었다가, 2012. 1. 10.자 매매를 원인으로 2012. 2. 3. 소외 DDD 앞으로 소유권이전등기가 되었다.

B. On August 22, 2013, the Defendant rendered a disposition imposing KRW 55,330,860 on the Plaintiff, deeming that the instant real estate was not CCC but the Plaintiff.

C. The Plaintiff filed an objection against the instant disposition. The Defendant filed an objection, and the Defendant recognized the total of KRW 1,166,760, and KRW 6,865,070, and KRW 10,031,830, in total of KRW 100,000,000, and KRW 2,000,000,000, as necessary expenses, paid for the unpaid management expenses of the previous owner, among the necessary expenses submitted by the Plaintiff, and corrected capital gains tax for the year 2012 to KRW 51,809,830 (hereinafter “the instant disposition”).

D. The Plaintiff filed an appeal against the instant disposition, but was dismissed on December 31, 2014.

Facts that there is no dispute, Gap 1 through 4, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Although the Plaintiff was actually engaged in the business of acquiring the instant real estate on behalf of the CCC, the actual owner of the instant real estate is CCC. Therefore, the instant disposition made on a different premise is unlawful.

2) The Plaintiff spent 10,300,000 won to EE and 25,504,900 won to the constructor in return for resolving the issue related to the auction, and such expenses shall be recognized as necessary expenses.

B. Determination

A lawsuit seeking revocation of a taxation disposition is based on the substantive and procedural illegality of the taxation disposition, and the subject matter of the review is the objective existence of the tax base and tax amount, which are the tax obligations recognized by the taxation disposition, i.e., the propriety of the taxation disposition, and the validity of the taxation disposition, which is the object of the review. If a judgment dismissing a claim seeking revocation of the taxation disposition becomes final and conclusive, the res judicata has become effective, and the plaintiff cannot bring an action seeking nullification of the final and conclusive judgment dismissed in the lawsuit seeking revocation of the taxation disposition, and thus the res judicata effect of the final and conclusive judgment dismissed in the lawsuit seeking nullification of the taxation disposition also extends (see, e.g., Supreme Court Decision 2002Du3669, May

을 제1 내지 4호증의 각 기재에 의하면, 원고는 이 사건 처분에 원고 주장의 하자가 있음을 이유로, 2015. 4. 2. 위 처분의 취소를 구하는 소(이 법원 20XX구단XXXX)를 제기하였으나, 이 법원은 2016. 4. 1. 위 처분이 적법함을 전제로 원고의 청구를 기각하는 판결(이하 '선행판결'이라 한다)을 선고하였으며, 위 판결은 2016. 11. 9. 항소기각을 거쳐 2017. 3. 9. 심리불속행기각으로 확정된 사실을 인정할 수 있다.

Therefore, the claim of this case conflicts with the res judicata of the previous judgment that held that the disposition of this case was lawful, and therefore, it is without merit to further examine the remainder.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.