Supreme Court-2018-Du-35704 ( October 31, 2018)

Cho-2016-Gu-2860 ( December 05, 2016)

The land in this case is all land for non-business use during the period of possession of miscellaneous land and farmland, and thus the lawsuit for retrial is dismissed.

The land in this case constitutes land for non-business use both of the miscellaneous land and the period of possession as farmland, and thus, special deduction for long-term possession cannot be applied.

Article 104-3 of the Enforcement Decree

Supreme Court-2018-Du-35704

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○ Head of tax office

8.31.20

2018.21

1. The lawsuit 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

The judgment subject to a retrial and the judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 8,191,100 against the Plaintiff (hereinafter referred to as “Plaintiff”) on March 21, 2016 shall be revoked on March 21, 2016.

928,869 won was paid by preliminary return.

B. As the instant land constitutes a non-business land under Article 104-3(1) of the former Income Tax Act (amended by Act No. 12852, Dec. 23, 2014; hereinafter the same), the Defendant deemed that the special deduction for long-term possession was not applicable to the Plaintiff on March 21, 2016, and notified the Plaintiff of KRW 8,191,100 (hereinafter the “instant disposition”).

C. On March 6, 2017, the Plaintiff filed a lawsuit against the Defendant seeking revocation of the instant disposition, alleging that “The instant land was temporarily cultivated from May 2012 to July 2014, and was used as a site for camping, and thus, it does not constitute non-business land on the basis of land category in the public register, rather than farmland,” and filed a lawsuit against the Defendant seeking revocation of the instant disposition ( Daegu District Court 2017Guhap**).

On September 6, 2017, the Daegu District Court sentenced the first instance court to dismiss the plaintiff's claim. The reason is that "the land of this case is miscellaneous until December 31, 2012." Since January 1, 2013, it is farmland under Article 168-8 (1) of the former Enforcement Decree of the Income Tax Act, and all are land for non-business and is not subject to special deduction for long-term holding, so the plaintiff's assertion is without merit.

D. The Plaintiff filed an appeal against the judgment of the first instance court (Tgu High Court 2017Nu2017*****). On January 26, 2018, the Daegu High Court sentenced the Plaintiff to a decision subject to a retrial that dismissed the Plaintiff’s appeal on the same ground as the judgment of the first instance on January 26, 2018. While the Plaintiff filed an appeal against the judgment subject to a retrial (Supreme Court 2018Du2018********) and May 31, 2018, the judgment of the first instance and the judgment subject to a retrial became final and conclusive by being dismissed

2. The plaintiff's assertion

A. The judgment subject to a retrial has violated the Supreme Court’s previous final and conclusive judgment (Supreme Court Decisions 97Nu256 Decided April 10, 1998; 98Ma2604 Decided February 23, 199; 79Ma264 Decided December 10, 1979; 2016Du940 Decided March 22, 2017; 97Nu15845 Decided February 8, 200; 98Du1062 Decided May 15, 199).

B. The judgment subject to review omitted a judgment on the following important matters, which may affect the judgment:

1) The Plaintiff’s assertion (Article 104-3 of the former Income Tax Act and Article 168-8(2) of the Enforcement Decree of the same Act provide that the definition of ‘self-cultivation' shall be governed by the provisions of subparagraph 5 of Article 2 of the Farmland Act, and thus, the judgment on ‘farmland' and ‘farmland' of the former Income Tax Act are the same.

2) The Plaintiff’s assertion (this case’s land is not smaller than 573 square meters) omitted a decision on the Plaintiff’s assertion (it is not subject to review of re-village and self-reliance as stipulated in Article 168-8 of the Enforcement Decree of the Income Tax Act and Article 2 subparag. 5 of the Farmland

3) Article 168-8(1) of the Enforcement Decree of the Income Tax Act alleged as the ground for the instant disposition did not comply with the provisions of Article 168-7 of the Enforcement Decree of the same Act and subparagraph 1(a) of Article 2 of the Farmland Act, thereby omitting judgment on February 3, 2017.

C. The instant disposition pursuant to Article 168-8(1) of the Enforcement Decree of the Income Tax Act, which was the basis of the judgment subject to a review, was changed according to the content of the National Tax Service Inquiry (transfer, property tax and -3488) on October 27, 2008.

D. Although Article 168-8 (2) of the Enforcement Decree of the Income Tax Act applies the Farmland Act to "self-fluence of farmland" as "self-fluence of farmland pursuant to subparagraph 5 of Article 2 of the Farmland Act, the judgment subject to a decision subject to a decision subject to a decision subject to a decision is excluded from the application of the farmland definition provision (Article 2 subparagraph 1 (a) of the Income Tax Act) and the grounds for rejection contrary to the law are

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

A. Relevant legal principles

○ The grounds for a retrial under Article 451(1)10 of the Civil Procedure Act are aimed at coordinating conflicts between the judgment subject to a retrial and the res judicata of a final and conclusive judgment different from that of another final and conclusive judgment. As such, “when a final and conclusive judgment rendered prior to the final and conclusive judgment is contrary to a final and conclusive judgment rendered prior to the final and conclusive judgment” refers to the case where both judgments conflict with each other. Even though the judgment rendered prior to the final and conclusive judgment pertains to a case similar to the judgment subject to a retrial, if the parties’ res judicata effect of such judgment does not conflict with that of the judgment subject to a retrial, it cannot be deemed as constituting a ground for a retrial under the aforementioned provision (see, e.g., Supreme Court en banc Decision 2011Da1999, Jul. 21, 201; Supreme Court Decision

○ The proviso of Article 451(1) of the Civil Procedure Act, which applies mutatis mutandis under Article 8(2) of the Administrative Litigation Act, provides that “if a party has asserted any ground for retrial by an appeal, or does not know it, it may not file a lawsuit for retrial.” In addition, the grounds for retrial under Article 451(1)9 of the Civil Procedure Act, which lacks the judgment on important matters that may affect the judgment, is an omission of judgment on the means of attack and defense by the party, and can be known upon delivery of the original judgment. Therefore, barring any special circumstance, it is reasonable to deem that such grounds for retrial had known the existence of such grounds for retrial at the time of delivery of the original copy of the judgment subject to retrial (see, e.g., Supreme Court Decisions 2009Du16411, Jan. 14, 2010; 93Da43798, Dec. 14, 1993).

B. Determination

In light of the above legal principles, first of all, the decisions that the Plaintiff asserted for the judgment in this case, and that the Plaintiff asserted, are different from the parties to the judgment subject to a retrial, and thus res judicata of the said decisions does not affect the parties to the judgment subject to a retrial. Therefore, the argument that the judgment subject to a retrial goes against the above previous judgment cannot be a

Furthermore, even if there were grounds for a retrial, such as a promotion of judgment, omission of judgment, etc. as alleged by the Plaintiff, insofar as the Plaintiff rendered a judgment subject to a retrial and served the original copy of the judgment and appealed to the Supreme Court within the period of final appeal, it is reasonable to deem that the Plaintiff filed an appeal with the Supreme Court upon knowing that there had already been such grounds for a retrial at that time. Therefore, regardless of whether the Plaintiff actually asserted such grounds in the final appeal, the Plaintiff cannot file a lawsuit for retrial on the ground that there was a cause for a retrial

Therefore, the litigation of this case is unlawful as a lawsuit brought against Article 8(2) of the Administrative Litigation Act, the proviso of Article 451(1) of the Civil Procedure Act.

4. Conclusion

Therefore, the lawsuit of this case is unlawful and thus it is decided to dismiss it. It is so decided as per Disposition.