Seocho 209west 4233 (02.08)

It is unlawful in violation of res judicata of the preceding case.

When a judgment dismissing a claim for revocation of a taxation disposition becomes final and conclusive, res judicata has effect on the legal nature of the disposition, and thus, it cannot be claimed to nullify the invalidity of the final and conclusive judgment which is dismissed in the lawsuit for revocation of the taxation disposition, and the res judicata effect of the final and conclusive judgment upon the claim

2012Gug 25333 Nullification of a taxation disposition

AA

Head of Seodaemun Tax Office

May 22, 2013

June 19, 2013

1. The part of the conjunctive claim in the instant lawsuit is dismissed.

2. The plaintiff's primary claim is dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

The primary claim is that the defendant's imposition of capital gains tax OOO on November 1, 2009 against the plaintiff is invalid.

"Preliminary Claim: On November 10, 2006, the date of expropriation commencement as of December 29, 2006 by the local Land Tribunal of Seoul Special Metropolitan City and on December 29, 2006, the date of transfer under the Income Tax Act on the portion of 3306/9521, out of 78-8,627 square meters in OOO-dong OO-dong OO-dong, OO-dong, OO-dong, OO-dong, OO-dong, O-dong, 78-8, 627 square meters owned by the plaintiff, shall be confirmed as the date of deposit of compensation

1. Details of the disposition;

"A. On November 24, 1989, the Plaintiff acquired and owned 3306/9521 shares out of 4,627 square meters of OOO-dong OOO-dong OOO-dong 78-8 square meters (hereinafter "the instant real estate"). B.O-si approved and publicly notified a urban development project in BBB Article 3-2 of BBB on February 25, 2004 (OO-si No. 2004-58), and the instant real estate was included in the project site area.

C. On November 10, 2006, the Seoul Special Metropolitan City Land Expropriation Committee, applied for the expropriation ruling to the Seoul Special Metropolitan City Land Expropriation Committee, and the Seoul Special Metropolitan City Land Expropriation Committee rendered the expropriation ruling with the content that the date of expropriation begins as of December 29, 2006, the real estate in this case is expropriated and the compensation for losses is OOO.

D. On December 20, 2006, when the Plaintiff refused to receive compensation as the Central Land Expropriation Committee filed an objection to the above expropriation ruling, the CCC deposited the OOOOO on December 20, and completed the registration of ownership transfer on February 23, 2007.

E. On June 21, 2007, the Central Land Tribunal accepted part of the Plaintiff’s filing of objection, and increased the amount of compensation for the instant real estate to OOO won. The Plaintiff dissatisfied with the said judgment, filed a lawsuit claiming compensation for losses under the Seoul Administrative Court Decision 2007Guhap2371, and received some favorable rulings on October 31, 2008, and filed an appeal with the Seoul High Court 2009Nu869, but the appeal was dismissed on September 3, 2010.

F. On July 18, 2007, the CCC deposited OOO on the compensation for losses increased by the Central Land Expropriation Committee’s ruling and OOOOO in the Seoul Administrative Court case 2007Guhap2371 on November 19, 2008, respectively.

G. On the other hand, around January 2007, the Plaintiff calculated the transfer margin and the acquisition value as the standard market price pursuant to Article 96(2) of the Income Tax Act (amended by Act No. 8825, Dec. 31, 2007; hereinafter the same) on December 20, 2006, which was deposited by the board of directors of the Seoul Special Metropolitan City Regional Land Tribunal, as the time of transfer of the real estate in this case.

H. The Defendant, on Nov. 1, 2009, cannot be deemed to have paid the transfer price of the instant real estate to the Plaintiff on Dec. 20, 2006, and thus, it cannot be deemed that the transfer price of the instant real estate was paid. Meanwhile, since each of the above increased compensation was deposited through the Plaintiff’s objection and the transfer registration of ownership was made in the name of CCCCC prior to the settlement of the transfer price, on the ground that on Feb. 23, 2007, the date of receipt of the transfer registration of ownership pursuant to Article 98 of the Income Tax Act and Article 162(1) of the Enforcement Decree, the transfer time of the instant real estate should be deemed to be the date of transfer of the instant real estate, and on the other hand, the Defendant appealed the transfer registration of the instant real estate to 2007 OOO, calculated the transfer income tax amount for 2007, and dismissed the Plaintiff’s claim under the Seoul Administrative Court Decision 2010Da1612710 decided Feb. 1, 2017.

(j) On November 14, 2011, the Plaintiff sought revocation of the Seoul High Court Decision 2011Nu36161 on the ground that the Plaintiff filed a petition for retrial as Seoul High Court Decision 201Nu267 on November 14, 201, but the request for retrial was dismissed on July 12, 201, and the final appeal was filed, but the judgment of the lower court became final and conclusive on August 20, 201 as an order to dismiss the petition for final appeal on August 20, 201

Evidence 1 to 5 (including each number, hereinafter the same shall apply), and Evidence 1 to 3, and the purport of the whole pleading of the pleading

2. The assertion and judgment

A. Summary of the plaintiff's assertion

(1) The transfer time of the instant real estate is, in the first place, against the Supreme Court's decision (2004Du6914) rendered prior to the imposition, which held on February 21, 2007, which held that the transfer time was the date of the registration of ownership transfer of the CCC, even though the Seoul Special Metropolitan City Regional Land Tribunal rendered a ruling of expropriation and the compensation was deposited on December 20, 2006.

(2) In cases where preliminary claims are rejected as res judicata of the preceding case, and the transfer time under the Income Tax Act on the real estate of this case is the time of the transfer, and there is a benefit to seek confirmation on December 20, 2006, which is the date of deposit of compensation under the adjudication of expropriation by the local Land Tribunal of Seoul Special Metropolitan City.

B. Judgment on the main claim

(1) A lawsuit seeking revocation of a taxation disposition is based on the substantive and procedural illegality of the taxation disposition, and the subject matter of the trial is the objective existence and existence of the tax standard and tax amount, which are the tax obligations recognized by the taxation authority, and the propriety of the taxation disposition in question, that is, the subject matter of the review, and that the decision dismissing the claim for revocation of the taxation disposition becomes final and conclusive, which has res judicata effect as to the legality of the taxation disposition, and thereafter, the plaintiff cannot seek nullification of the final and conclusive judgment dismissed in the lawsuit seeking nullification of the taxation disposition (see, e.g., Supreme Court Decision 2002Du3669, May 16, 2003).

(2) Ultimately, the primary claim seeking confirmation of invalidity of the instant disposition conflicts with the res judicata effect of the preceding case, which ruled that the instant disposition was lawful, and thus, without further review, the primary claim of this case is without merit.

C. Determination on the conjunctive claim

(1) In a lawsuit for confirmation, the benefit of confirmation is recognized in cases where there is a dispute between the parties as to the legal relationship subject to confirmation, and, thereby, it is recognized that the time of transfer under the Income Tax Act following the transfer of the land in this case is the most effective and appropriate means to determine the plaintiff as the confirmation judgment to eliminate the anxiety and risk (see, e.g., Supreme Court Decision 2003Da5059, Dec. 22, 2005). In a lawsuit for confirmation, simple confirmation of facts is without any benefit of confirmation (see, e.g., Supreme Court Decisions 90Nu3553, Nov. 23, 1990; 92Da23872, Dec. 8, 1992). The part of the claim seeking confirmation of the facts that the time of transfer under the Income Tax Act following the transfer of the land in this case is the deposit date of compensation as determined by the adjudication for expropriation.

(2) Ultimately, the instant conjunctive claim is unlawful as there is no benefit of confirmation.

3. Conclusion

Therefore, the main claim of this case is dismissed as it is without merit, and the conjunctive claim is illegal, and it is so decided as per Disposition.