Busan District Court-2014-Gu Partnership-91 (Law No. 22, 2014)

Res judicata of a final and conclusive judgment revoking a taxation disposition shall only apply to the grounds for illegality established by the final and conclusive judgment.

A new taxation disposition by supplementing the grounds for illegality in the procedure of the initial taxation can not be seen as a new taxation disposition that is different from the initial taxation disposition.

Article 8 [Service of Documents)

2014Nu2250 Nullification of a disposition of seizure of claims

AA Stock Company

○ Head of tax office

April 1, 2015

May 20, 2015

1. The plaintiff's claim that is changed in exchange in the trial is dismissed.

2. The total cost of a lawsuit shall be borne individually by each party.

1. Purport of claim

On February 5, 2015, the Defendant confirmed that the disposition for imposition of corporate tax of KRW 3,272,049,000, which the Plaintiff rendered to the Plaintiff on February 5, 2015, is null and void (In the first instance trial, the Plaintiff sought confirmation of invalidity of the disposition for imposition of corporate tax imposed by the Defendant to the Plaintiff on September 16, 2013, but after the judgment of the first instance court, the Defendant sought ex officio revocation of the above disposition for imposition and confirmation of invalidity of the disposition for imposition

2. Purport of appeal

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

1. Details of the disposition;

A. When the Defendant sold 29,586 square meters of forest land owned by the Plaintiff to the ○○○○○○-dong 00-00, 000 square meters to the ○○○○○-dong, on June 20, 2013 in the course of the voluntary auction of real estate, on September 16, 2013, the Defendant determined the Plaintiff’s corporate tax base for the business year 2013 as KRW 5.1 billion by including the sales amount of the said real estate in the gross income for the business year 2013 (from January 1, 2013 to December 31, 2013) and the purchase amount as KRW 1.1 billion in the deductible expenses for the same business year (hereinafter “the initial disposition”).

B. The Defendant confirmed that the Plaintiff was closed on December 31, 2007 through the internal computer network, and notified tinB, registered on the Plaintiff’s computer network as the representative director at the time of closure, of the initial disposition by serving the Plaintiff’s notice of payment of corporate tax for the business year 2013 by registered mail.

However, at the time of the notice of initial disposition, the Plaintiff’s head office was transferred to ○○○○○-dong 000 ○○○-dong 000 ○○○-dong 000 on two occasions on April 11, 2013 (Dong, ○○-dong, ○○○○○○-dong 000) on April 11, 201, and completed the registration of change on April 16, 2013. The representative director also changed to ○○○○-dong 00 ○○○○-dong 00 ○○○○-dong 00 ○○ ○○○-dong 00 ○○ ○○, a location at the time of the closure of business.

C. Meanwhile, the Plaintiff filed the instant lawsuit seeking confirmation of invalidity of the initial disposition on the ground that the initial disposition was not lawfully served on the Plaintiff, and the court of first instance rendered a judgment in favor of the Plaintiff confirming that the initial disposition was null and void on the ground that, at the time of the initial disposition, the Plaintiff’s representative director at the time of the initial disposition, was delivered to tinB, the former representative director at the time of the original disposition, and that it was inappropriate for the Defendant

D. On November 17, 2014, the Defendant revoked the initial disposition ex officio on the ground of the defect in the delivery of the lawsuit pending in the trial, and subsequently, determined the Plaintiff’s corporate tax base for the business year 2013 as KRW 5.1 billion, corporate tax amounting to KRW 1.2778,30,000,000 (i.e., KRW 1 billion + penalty tax amounting to KRW 278,30,000), and notified the Plaintiff’s formerCC (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 2, 3, Eul evidence 1 to 4, Eul evidence 7 to 11, the purport of the whole pleadings

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

As the judgment of the first instance court properly judged, the service of the original disposition is unlawful and null and void, and so long as the original disposition is null and void due to procedural defects, even if the defendant revoked the original disposition and recovers procedural defects, the defects of the original disposition shall also be deemed null and void. Therefore, the disposition of this case, which constitutes the second disposition on the original disposition, shall also be deemed null and void.

B. Determination

The res judicata effect of a final and conclusive judgment revoking a taxation disposition is limited to the grounds for illegality that have arisen from the final and conclusive judgment, and a new taxation disposition, which supplements the grounds for illegality that have arisen from the final and conclusive judgment, is separate from that of the previous taxation disposition revoked by the final and conclusive judgment, and does not conflict with the res judicata effect of the final and conclusive judgment (see, e.g., Supreme Court Decision 2000Du

In light of the above legal principles, it is reasonable to view that the instant disposition was a new disposition that supplemented the grounds for illegality in the course of the original disposition, and is a separate disposition from the original disposition. Thus, it cannot be deemed that the defect of the original disposition is succeeded to the original disposition, and there is no other procedural and substantive defect inherent in the instant disposition. The Plaintiff’s assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim that changed from the trial of the court is without merit, and it is dismissed (the claim that confirmed the invalidation of the disposition imposing corporate tax on September 16, 2013, the previous lawsuit was withdrawn due to the exchange change in the trial and the judgment of the court of first instance was invalidated).