Suwon District Court 2010Guu12621 ( October 16, 2012)

early 2010 Heavy014 (2010.06.09)

Where a disposition is made to change the year to which the claim is reverted while the revocation lawsuit is pending, it is unnecessary to judge whether the period for filing a lawsuit for change

If there is a disposition changing only the year to which the original disposition belongs while a legitimate revocation lawsuit against the original disposition is pending, and the grounds for revocation alleged to exist in the original disposition are identical to the changed disposition, it is unnecessary to judge whether the revocation lawsuit against the original disposition has been filed within the legitimate filing period.

2012Nu28201 Revocation of disposition of imposing capital gains tax

AAA

The director of the tax office

Suwon District Court Decision 2010Guhap12621 Decided August 16, 2012

May 2, 2013

May 30, 2013

1. The defendant's appeal is dismissed.

2. Of the appeal costs, the part arising between the Plaintiff and the Defendant’s participation is assessed against the Defendant’s Intervenor.

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2006 against the Plaintiff on January 14, 201 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasons for this court's ruling are as follows, except for the addition of the judgment of the defendant to the new argument in the appellate court, and they are cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Judgment on the defendant's assertion

A. As to the instant safety defense

1) The assertion

Although the Defendant changed the disposition subject to the instant lawsuit on January 14, 201, the Plaintiff filed an application for modification only after the lapse of 60 days as stipulated in Article 22(2)1 of the Administrative Litigation Act, and the said application for modification is unlawful.

2) Determination

In relation to the transfer of the Plaintiff’s shares, the Defendant issued a disposition imposing KRW 000 on the Plaintiff on September 4, 2009 (hereinafter “the initial disposition”), and it was found that the time of transfer of shares in this case was 2006, while the lawsuit in this case was pending, and that the disposition in this case was issued on January 14, 201, imposing capital gains tax of KRW 000,000 for the transfer income tax of 206 to the Plaintiff on September 17, 2009, as the first instance court ruling cited above, did not recognize that the initial disposition in this case was unlawful, and that the initial disposition in this case was issued to the Plaintiff on January 17, 201, and that the Plaintiff did not claim revocation of the disposition in this case on September 7, 201, and that the Plaintiff did not claim revocation of the disposition in this case, and that the disposition in this case was unlawful before the Plaintiff’s initial disposition in this case’s lawsuit was revoked, as well as that of this case’s claim for revocation of the transfer value of this case’s claim.

B. As to the assertion on the refund of investment funds

1) The assertion

Since the non-party company and the intervenor have already returned all the investment funds to the plaintiff before entering into the stock transfer contract of this case, the key issue amount in this case should be considered to have been determined by reflecting the net asset value of the shares of this case, and therefore, the prior disposition of this case is legitimate.

2) Determination

In light of the following circumstances, Gap evidence 13-2, Eul evidence 24, Eul evidence 26, Eul evidence 19, Eul evidence 27, and Eul evidence 33-2, and the facts that non-party company and intervenor paid 000 won to the plaintiff over 23 times from October 26, 2005 to June 30, 2006, it is difficult for the intervenor to acknowledge that the plaintiff would return the principal and interest balance to the plaintiff on September 7, 2006, and that the non-party company and intervenor did not have any other evidence to acknowledge that the plaintiff would have made a new share agreement between the plaintiff and the plaintiff on September 27, 2006 and that the plaintiff would have no other evidence to prove that the plaintiff would have returned the amount of the principal and interest to the plaintiff, and that the plaintiff would not have any other part of the above agreement between the plaintiff and the non-party company 20-party 37, 200.

3. Conclusion

The judgment of the first instance is justifiable, and the appeal of the defendant is dismissed due to lack of grounds.