Seoul Administrative Court 201Gudan20508 ( December 27, 2011)

National Tax Service Review and Transfer 2011-0127 ( November 30, 2011)

The principle of prohibition of re-disposition is not effective when the dismissal ruling becomes final and conclusive.

When a judgment revoking a disposition, etc. becomes final and conclusive, the administrative agency shall not have the same effect as the cancelled disposition, and the exclusion period of imposition shall not be reduced to one year, even if the ruling of dismissal becomes final and conclusive and conclusive, and the administrative agency shall not have the same effect as the cancelled disposition.

Article 30 of the Administrative Litigation Act

Article 26-2 of the National Tax Basic Act

2012Nu2377 Revocation of Disposition of Imposing capital gains tax

XX Kim

The Director of the Pacific District Office

Seoul Administrative Court Decision 2011Gudan20508 decided December 27, 2011

May 16, 2012

June 20, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of capital gains tax of 000 won on March 1, 201 against the plaintiff on March 1, 201 shall be revoked.

1. cite the judgment of the first instance;

The reasons why this Court is used in relation to this case are as follows, except for the addition of the judgment on the allegations made by the plaintiff in the trial as set forth in Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

In the judgment of the first instance court (from the fourth to the nineth sentence) the paragraph (1) (from the fourth to the nineth sentence) shall be followed:

(1) Whether the instant disposition goes against the res judicata effect of the judgment prior to the instant lawsuit

The previous lawsuit in this case is a subject matter of lawsuit, "the defendant's imposition of capital gains tax of 000 won on November 1, 2006 against the plaintiff". The lawsuit in this case is a subject matter of lawsuit, "the defendant's imposition of capital gains tax of 000 won on March 1, 201 against the plaintiff on March 1, 201". Each subject matter of lawsuit in this case differs from objective and visual scope. Further, the previous lawsuit in this case became final and conclusive by the judgment of dismissal of the plaintiff. The res judicata effect results from the part that the defendant's imposition of capital gains tax of 2006 against the plaintiff on November 1, 2006 is not unlawful.

(2) Whether the prohibition of re-disposition is against the principle of prohibition of re-disposition

In ordinary, the principle of prohibition of re-disposition refers to a final and conclusive judgment that revokes a disposition, etc. under Article 30(1) of the Administrative Litigation Act, and the administrative agency concerned and other relevant administrative agencies should not take the same disposition as the revoked disposition. This is recognized where a final and conclusive judgment to revoke a disposition becomes final and conclusive, and thus, the prohibition of re-disposition is not recognized.

The principle of prohibition of re-disposition asserted by the Plaintiff seems to have not been taxed on the part of the tax authorities which was exempted or exempted after the tax authorities imposed a non-taxation or reduction or exemption. However, pursuant to Article 114(3) of the Income Tax Act, the head of a tax office or the director of a regional tax office having jurisdiction over the place of tax payment shall immediately correct the same in cases where any omission or error was found after having determined or corrected the tax base and tax amount of capital gains, and then such determination or correction was made. The Defendant issued a disposition with the content of reduction or exemption of capital gains tax belonging to 2006 when the previous disposition was rendered, but it was clearly stated that the Plaintiff failed to do so for at least

O's fourth 10th (10th (2) is regarded as '(3)'.

O 'Related Acts and subordinate statutes' shall be added to the end of the judgment at the end of the judgment.

2. Additional determination

A. The plaintiff's assertion

According to Article 26-2(2) Subparag. 1 of the Framework Act on National Taxes, where a decision or judgment is made on an objection, request for examination, request for adjudgment, request for examination under the Act of the Board of Audit and Inspection, or litigation under the Administrative Litigation Act, no tax shall be imposed upon the lapse of one year from the date such decision or judgment becomes final and conclusive. The instant disposition made

B. Determination

According to Article 26-2(1)1 and 3 of the Framework Act on National Taxes, where a taxpayer evades a national tax, or obtains a refund or deduction by fraudulent or other unlawful means, a national tax may not be imposed after the expiration of the 10-year period from the date on which the national tax can be imposed. However, even if the exclusion period prescribed in Article 26-2(2)1 of the Framework Act on National Taxes expires, where a decision or judgment is made on a request for objection, request for examination, or adjudgment under the Board of Audit and Inspection Act, or litigation under the Administrative Litigation Act, the exclusion period is extended so that the decision or other necessary disposition can be made by the relevant decision or judgment before one year has elapsed from the date on which the decision or judgment becomes final and conclusive. This means only to prevent any unreasonable cancellation of the exclusion period after the lapse of the exclusion period, such as a request for administrative trial, administrative litigation, etc. against a taxation disposition, and it does not mean that the exclusion period has expired even before the expiration of the exclusion period, which is five years or ten years.

“The date on which national tax may be imposed” refers to the date following the due date of filing a tax base and amount of tax and the due date of filing a return. In the case of capital gains tax to be borne by a resident, the due date of filing a tax base and amount of tax and the due date of filing a return is from May 1 to May 31 of the following year (Article 110 of the Income Tax Act). The date on which the tax authority may impose capital gains tax is June 1 of the following year, which is the day after the due date of filing a tax return for the pertinent taxable year. The date on which the transfer income tax may be imposed on the capital gains accruing from the transfer of the farmland of this case by the Plaintiff is June 1, 2007, and the period of exclusion shall expire on May 31, 2012. The period of exclusion shall not be reduced even if there is an objection, request for examination, request for adjudgment, request for examination under the Board of Audit and Inspection Act, or a decision or judgment on litigation under

3. Conclusion

The appeal is dismissed.