Seoul Administrative Court 201Gudan28700, 2012.10

As asserted that it does not constitute a legitimate ground for retrial, it is unlawful.

The instant judgment subject to review is based on the determination that there is no evidence to prove that there is a serious and obvious defect in the disposition imposing capital gains tax on the Plaintiff, and thus, the forgery by the transfer date does not affect the judgment and does not constitute one house for one household, as well as one house for one household. Therefore, such a ground for

2013Regal 14. Invalidity of the imposition disposition of capital gains tax

AA

○ Head of tax office

on December 23, 2014

on 13, 2015

1. The lawsuit of this case shall be dismissed.

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

The decision subject to a retrial is revoked. On March 3, 2010, the imposition of the capital gains tax for 2006 by the defendant (the defendant, hereinafter referred to as "the defendant") against the plaintiff (the plaintiff, hereinafter referred to as "the plaintiff") is invalid.

1. Determination of the original judgment

The following facts are neither disputed between the parties nor clear in records:

A. On March 30, 2002, the Plaintiff inherited ○○○○-dong 35 ○○○-dong 35 ○○-dong ○○ apartment (hereinafter “instant apartment”) and on November 29, 2002, the area where the instant apartment is located was approved by the reconstruction project association (○○ apartment reconstruction project association) in the area where the instant apartment is located.

B. The Plaintiff, as a member of the Plaintiff, entered into a sales contract with the said association on the newly constructed apartment (○○dong ○○○○○○○○) instead of the instant apartment, and on April 27, 2006, transferred the said association member’s sales right (hereinafter “instant sales right”) to ○○○, and did not report the transfer income tax.

C. Accordingly, on March 31, 2010, the Defendant decided and notified the Plaintiff of the acquisition value of the instant sales right as the purchase value of the instant sales right at ○○○○○○ (sale Case Price) (hereinafter “instant disposition”).

D. On November 24, 201, the Plaintiff filed a lawsuit seeking the confirmation of the detailed statement of capital gains and the lawsuit seeking the confirmation of the invalidity of the disposition, which was filed on April 19, 2006, on the following grounds: (a) on April 27, 2006, the Plaintiff intended to sell the instant sales right, as well as on April 19, 2006, based on the date of the said transfer. Therefore, even though the transfer of the instant sales right constitutes a non-taxation for one household; (b) the instant disposition, which was otherwise reported, constitutes the invalidity of the defect, as it is obvious and apparent.

E. On July 10, 2012, this Court rendered a judgment dismissing the Plaintiff’s claim (which is the subject judgment of review) on the following grounds.

In an administrative litigation claiming the invalidity of an administrative disposition as a matter of course and seeking the confirmation of invalidity thereof, the plaintiff is liable to assert and prove the grounds for invalidity of the administrative disposition. The evidence submitted by the plaintiff alone is insufficient to acknowledge that the disposition of this case is null and void as a matter of course. Rather, in full view of the overall purport of the evidence submitted by the plaintiff, the plaintiff's assertion based on the date of transfer, as well as the right to sell in this case, can only be acknowledged that the plaintiff acquires ○○○○ apartment-dong, ○○○ apartment-dong, ○○○ apartment-dong, ○○○ apartment-dong, ○○○ apartment-dong, ○○○ apartment-dong, ○○○ apartment-dong, ○○○ apartment-dong, △△△△△ apartment-dong

F. The judgment subject to a retrial was served on July 18, 2012 on the Plaintiff’s legal representative, and the Plaintiff submitted a petition of appeal on August 1, 2012, and the order of correction ordering the Plaintiff to set the stamp and delivery fee upon the appeal within seven days was served on the Plaintiff and the Plaintiff’s legal representative on August 16, 2012, but this court ordered the Plaintiff to dismiss the petition of appeal on August 27, 2012. This order was served on the Plaintiff and the Plaintiff’s legal representative on September 18, 2012 (the date the judgment subject to a retrial became final and conclusive is August 2, 2012).

G. On September 24, 2012, the Plaintiff filed an immediate appeal against the order to dismiss the petition of appeal at Seoul High Court 2012,000, but the appeal was dismissed on November 6, 2012. The Plaintiff re-appealed by Supreme Court 201Do209 Decided November 12, 2012, but was dismissed on January 31, 2013.

2. Summary of the plaintiff's assertion

The Supreme Court Decision on retrial not only forged or altered evidence that forms the basis of the judgment, such as ① a person on February 5, 2010, who was the date of transfer of the capital gains tax investigation return and the nominal name transfer date, is forged or altered, but also falls under the case where the judgment was omitted on important matters that may affect the judgment, but also falls under the case where the judgment was omitted. ③ The judgment subject to retrial should be revoked because there is a defect in granting the authority necessary for litigation by the attorney, which constitutes a defect in granting the authority necessary for litigation.

3. Whether a litigation for retrial is lawful;

A. Determination as to the assertion No. 1

The plaintiff asserts the grounds for retrial under Article 451(1)6 of the Civil Procedure Act.

1) Article 451(1) of the Civil Procedure Act, which applies mutatis mutandis under Article 8(2) of the Administrative Litigation Act, provides that “when documents and other articles used as evidence of the judgment have been forged or altered (Article 451(1)6),” the grounds for retrial may be prescribed as “when a judgment of conviction or judgment of imposition of a fine for negligence has become final and conclusive, or when a final and conclusive judgment of conviction or a judgment of imposition of a fine for negligence cannot be rendered for reasons other than lack of evidence can not be filed for lack of evidence” (Article 451(2) of the Civil Procedure Act). In such a case, if the requirements under Article 451(1)6 of the Civil Procedure Act are not satisfied with respect to the grounds for retrial under Article 451(2) of the same Act, the retrial itself is unlawful, and thus, the judgment on the grounds for retrial itself should be dismissed (see Supreme Court Decision 2005Da58236, Jan. 12, 206).

2) However, there is no evidence to acknowledge that the fact that the documents, etc. alleged by the Plaintiff in this case were forged or altered has been determined by the judgment, etc. of the crime of oil, or that it was impossible to make a final and conclusive judgment of conviction or a final and conclusive judgment of fine for negligence for reasons other than lack of evidence

3) Also, as alleged by the Plaintiff, even if the transfer date of the capital gains tax investigation return and the name transfer date was written on April 19, 2006, not on April 27, 2006, but on April 19, 2006, the court rendered a judgment different from the original judgment subject to a judgment. This is because the Plaintiff’s assertion on the transfer date of the Plaintiff is not a kind of the Plaintiff’s right to sell in this case, even if based on the date of transfer alleged by the Plaintiff, the Plaintiff has the right to sell in this case, as well as the right to sell in this case, on June 9, 2003, the Plaintiff acquired ○○○○○-dong, ○○○-dong, ○○○○○ apartment, ○○○-dong, and the transfer of the right to sell in this case after more than one year has elapsed since the Plaintiff acquired

B. Judgment as to the assertion No. 2

Article 451 (1) 9 of the Civil Procedure Act, which applies mutatis mutandis under Article 8 (2) of the Administrative Litigation Act, refers to the case where the parties failed to make a decision on important matters that may affect the judgment" refers to the means of attack and defense which are submitted by the parties in a lawsuit, and which affect the judgment, and where the judgment is not clearly stated in the reasoning of the judgment. The plaintiff asserts to the purport that the transfer date of the transfer income tax investigation/proband name transfer/proband name transfer date of February 5, 2010 was forged or altered on the ground of the retrial in this case, and that the application

However, the instant judgment subject to a retrial is based on the determination that there is no evidence to prove that there is a serious and obvious defect in the disposition imposing capital gains tax on the Plaintiff, and the forgery of the transfer date does not affect the judgment, and it is explicitly decided to the effect that the instant judgment does not constitute one house for one household even if the date of transfer alleged by the Plaintiff is based on the date of transfer by the Plaintiff. Therefore,

C. Determination as to the allegation No. 3

In addition, the plaintiff stated in the petition for retrial of this case as a ground for retrial under Article 451 (1) 3 of the Civil Procedure Act, but there is no evidence to acknowledge it. Thus, this part of the petition for retrial is unlawful as it asserts that it does not constitute legitimate

4. Conclusion

Therefore, the lawsuit of this case is dismissed as unlawful.