Seoul Administrative Court-2015-Gu Partnership-53121 ( October 17, 2015)

Appellate Court 2014west3643 ( November 24, 2014)

If illegal income has been collected due to criminal conduct, it shall not be the income subject to taxation.

Even if illegal income is caused by criminal act, it constitutes an income subject to taxation unless it is returned to the original owner. On the other hand, even if illegal income has been repaid after the establishment of the income tax liability, it shall not affect the tax liability for global income tax already accrued, but if illegal income has been collected additionally, it shall not be subject to taxation.

Article 21 of the former Income Tax Act

2015Nu53147 Global income and revocation of disposition

United StatesA

O Head of tax office

December 9, 2015

February 24, 2016

1. Revocation of a judgment of the first instance. All of the actions in this case, including the action of a claim added in the trial, shall be dismissed.

2. Of the total litigation costs, 40% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The judgment of the first instance court on the place where the Gu was placed and the place of appeal was revoked. The Defendant revoked each of the imposition of KRW 39,388,90 of the global income tax for the Plaintiff on April 21, 2014 and the imposition of KRW 39,037,520 of the global income tax for the year 2007 as of December 1, 2014, and global income tax for the year 2008, KRW 30,243,400 of the global income tax for the year 2008, and KRW 2,235,050 of the global income tax for the year 209 (the Plaintiff added the Defendant’s request for the revocation of each global income tax for the December 1, 2014).

1. Details of the disposition;

A. On September 194, the Plaintiff entered the office of general affairs of the BB Arts University and performed the duties of the head of the administrative office, the head of the general affairs division, and the deputy head of the Ministry of Foreign Affairs. The Plaintiff was indicted on the charge of taking property in breach of trust with the following contents and was sentenced to KRW 000,000 (Seoul Central District Court OOOOOOO). On July 6, 2012, the Plaintiff received an illegal request from 200,000,000 won for continuing transactions with the BB Arts University on the underground parking lot of the building located at BB Arts University (Seoul Central District Court, OOOOOOO) around April 209, and received KRW 5 million in cash upon receiving an illegal request from 29,000,000 from 20 to 200,000 won in total. The Plaintiff received the said illegal request.

On the other hand, both the plaintiff and the prosecutor appealed (OOO of the Seoul High Court), and the appellate court reversed the above first instance judgment on the grounds of unfair sentencing on November 9, 2012, and sentenced the plaintiff to the suspension of execution, OO hours of community service, and additional collection KRW 00 on the OO month. The above judgment became final and conclusive around that time.

B. In the instant judgment, the Defendant: (a) deemed the amount determined as the amount in breach of trust as the Plaintiff’s other income and added it to the income in the year 2006 through 2009; (b) determined and notified each global income tax of KRW 000,000, which reverts to April 21, 2014; (c) KRW 000, which reverted to the year 2007; (d) KRW 000, which reverted to the year 2008; and (e) KRW 00,000, which reverted to the year 209, as global income tax (including each additional tax for negligent return and additional tax for negligent payment) on April 21, 2014. The Plaintiff was dissatisfied with the imposition disposition of global income tax for the year 2006, and was dismissed on July 24, 201; and (e) the Plaintiff was subject to the ex officio revocation decision on December 20, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 9, 10, Eul evidence No. 1 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether a lawsuit is lawful on the revoked portion ex officio;

When an administrative disposition is revoked, such disposition shall become void and shall no longer exist, and its existence shall

A lawsuit seeking revocation against an administrative disposition, which is not an administrative disposition, is unlawful as there is no benefit of lawsuit (Supreme Court)

See Supreme Court Decision 2014Du35331 decided May 29, 2014, etc.

As seen earlier, the Defendant revoked ex officio the imposition of global income tax for the year 2006, April 21, 2014, which was after filing an appeal. As such, the part of the claim for revocation of the imposition of global income tax for the year 2006, among the instant lawsuit, was unlawful as it was against the unexploded disposition.

3. Determination on the defense prior to the merits

A. The defendant's assertion

The Plaintiff filed an appeal only on the imposition disposition of global income tax for the year 2006, and the imposition disposition of global income tax for the year 2007 through 2009 did not go through the preceding trial procedure. As such, the part seeking revocation of the imposition disposition of global income tax for the year 2007 through 2009 among the instant lawsuit is unlawful.

According to Article 56 (2) of the Framework Act on National Taxes, an administrative litigation against a disposition of national taxes may not be instituted without going through a request for examination or adjudgment under the Framework Act on National Taxes and a decision thereon, notwithstanding Article 18 (1) (main sentence), (2) and (3) of the Administrative Litigation Act. In principle, there is no evidence to acknowledge that the Plaintiff had undergone an examination or a trial procedure on each disposition of global income tax for 2007 to 2009 prior to the institution of the lawsuit in this case. Therefore, the part of the claim for revocation of each disposition of global income tax for 2007 to 2009 among the lawsuit in this case was filed without going through a prior trial procedure as provided in the Framework Act on National Taxes, and the defendant's objection to the merits pointing this out is unlawful.

Therefore, all of the lawsuits of this case shall be dismissed in its entirety, and since the judgment of the court of first instance is unfair as it is so unfair, the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed in its entirety, including the lawsuit added in the court of first instance, and it is so decided