As long as res judicata of a final and conclusive judgment affects, the court may not make a decision inconsistent with the above final and conclusive judgment.

The objective existence of the disposition imposing capital gains tax, which is the subject matter of this case, has already been finally and conclusively determined, and all of the grounds for the claim are asserted as to the grounds that occurred before the closing of argument in the final and conclusive judgment, and eventually res judicata of the above final and conclusive judgment shall also affect this case. Thus, the court cannot render a judgment inconsistent

Article 216 of the Civil Procedure Act provides objective scope of res judicata

2016 old-gu 55615 Invalidity of the imposition of capital gains tax

Doz.

■■세무서장

July 11, 2017

July 18, 2017

1. The part of the claim for revocation of the imposition of capital gains tax of KRW 120,50,855 among the primary claims shall be dismissed, and the part of the claim for revocation of the imposition of additional tax of KRW 46,213,615 shall be dismissed;

2. The part of the claim for revocation of the imposition of capital gains tax of 120,504,855 won among the conjunctive claims shall be dismissed, and the part of the claim for revocation of the imposition of additional tax of 46,213,615 won shall be

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

Cheong-gu Office

The primary purport of the claim is to confirm that the Defendant’s imposition of capital gains tax of KRW 166,718,470 against the Plaintiff on December 11, 2012 is invalid.

Preliminary claim: On March 3, 2010, the Defendant confirmed that imposition of capital gains tax of KRW 120,504,855 against the Plaintiff and imposition of penalty tax of KRW 46,213,615 are invalid.

1. Details of the disposition;

A. On March 30, 2002, the Plaintiff inherited ○○○○○ apartment, ○○○○○ apartment, ○○○○○○ apartment, 30, 50 (hereinafter “instant apartment”). On the other hand, on November 29, 2002, in the area where the instant apartment is located, ○○ apartment reconstruction project was approved.

나. 원고는 2004. 10. 5. 위 재건축정비사업 조합과 사이에, 이 사건 아파트 대신 새로 건축될 아파트 3○○동 17○○호를 분양대금 332,386,000원에 분양받는 분양계약을 체결하고, 2006. 4. 19. 박▲▲에게 위 분양권(이하 '이 사건 분양권'이라 한다)을 5억 7,000만 원에 양도하였으나, 양도소득세를 신고하지 아니하였다.

C. On March 3, 2010, the Defendant decided and notified the Plaintiff of KRW 166,718,470 (including additional tax amounting to KRW 46,213,615) of the transfer income tax attributed to the year 2006 (hereinafter “the first disposition”).

D. On November 24, 2011, the Plaintiff dissatisfied with the first disposition, filed a lawsuit against the Defendant seeking confirmation of invalidity of the first disposition (Seoul Administrative Court 201Gudan2000, Seoul Administrative Court 201). However, on July 10, 2012, the Plaintiff was sentenced to a judgment against the Defendant, and the said judgment became final and conclusive on August 2, 2012.

E. Meanwhile, on October 18, 2012, the Supreme Court rendered a judgment that "in imposing additional tax, only the aggregate amount of the additional tax is stated in the imposition disposition, and that the imposition disposition that did not disclose the type thereof and the basis for calculation of the amount of tax is illegal" was unlawful. In accordance with the purport of the judgment of the Supreme Court, the Defendant revoked ex officio the imposition disposition of additional tax among the first disposition, and on December 11, 2012 against the Plaintiff on December 11, 2012, the Defendant determined and notified the Plaintiff of the additional tax of KRW 12,50,486, the additional tax of KRW 120,50,486, the additional tax of KRW 34,163,129, which stated the type of the transfer income tax and the basis for calculation of the amount of tax (hereinafter referred to as "second disposition").

Facts without any dispute, Gap's Nos. 1, 2, 3, Eul's Nos. 1 through 4, 6 through 11, and 14 (including additional numbers), and the purport of the whole pleadings.

2. Whether the first and second dispositions are lawful.

A. The plaintiff's assertion

1) The Defendant, as a result of the grievance settlement, neglected the acquisition value of the instant sales right of KRW 264,00,000, and without any basis, took the first and second dispositions to impose capital gains tax of KRW 201,726,00. Therefore, the part of the imposition of capital gains tax of KRW 120,504,855 among the second and second dispositions is serious and obvious, and thus, the imposition of penalty tax is null and void.

2) The liquidation money received by the Plaintiff from a reconstruction and improvement project association is converted into the surplus portion not reflected in the association member's relocation rights, and its substance is capital gains on the building and land that the Plaintiff transferred to the reconstruction and improvement project association. Therefore, this part satisfies the statutory requirements under which the special long-term holding deduction is possible pursuant to Article 95 (2) of the former Income Tax Act (amended by Act No. 11146, Jan. 1, 2012). Therefore, the imposition of capital gains tax of KRW 120,504,855 out of the first and second dispositions that did not apply the special long-term holding deduction for the liquidation money received is null and void because the defect is serious and clear, and the imposition of first and second additional taxes

B. Determination

1) Judgment on the main claim

A) Determination on the claim for revocation of imposition of capital gains tax of KRW 120,504,855

In order to facilitate the exercise of taxation right and the realization of tax claims, penalty tax is a kind of administrative sanction imposed on a taxpayer who violates the duty prescribed by the tax law without justifiable grounds. For the convenience of collection procedure, it is a kind of national tax prescribed by the relevant tax law, which is to be collected together with the principal tax amount calculated under the relevant tax law, and its nature is in essence different from that determined under the tax law (see Supreme Court Decision 2000Du7520, Oct. 26, 2001).

As seen earlier, the Defendant revoked the imposition of additional tax ex officio in accordance with the purport of the Supreme Court Decision 2010Du12347 Decided October 18, 2012. In the case of the second disposition, the Defendant did not impose the capital gains tax of KRW 120,504,855, and did not impose additional tax of KRW 12,050,486, additional tax of additional tax of KRW 34,163,129, and additional tax of additional tax of KRW 34,163,129.

Therefore, the claim for cancellation of the imposition of capital gains tax of KRW 120,504,855 among the primary claim is unlawful as it seeks to revoke the administrative disposition that does not exist.

B) Determination on the part on the claim for additional tax

As examined below, as long as the imposition of capital gains tax of KRW 120,504,855 is legitimate among the first disposition, the imposition of penalty tax is also lawful. Therefore, the Plaintiff’s assertion on this part is without merit.

2) Determination on the conjunctive claim

A) Determination on the claim for revocation of imposition of capital gains tax of KRW 120,504,855

On November 24, 2011, the Plaintiff dissatisfied with the first disposition and filed a lawsuit against the Defendant seeking confirmation of invalidity of the first disposition (Seoul Administrative Court 201Gudan2000, 201). However, a judgment was rendered against the Defendant on July 10, 2012, and the said judgment became final and conclusive on August 2, 2012, as seen earlier.

In accordance with the above facts of recognition, the plaintiff had already received a final and conclusive judgment as to the objective existence of the disposition of imposition of capital gains tax of KRW 120,504,855, which is the object of the preliminary claim, through a lawsuit. The plaintiff's assertion is all related to the grounds that occurred before the closing of argument in the final and conclusive judgment, and the res judicata effect of the above final and conclusive judgment shall also affect this case. Thus, this court cannot make a decision inconsistent with the above final and conclusive judgment. Accordingly, this part of the plaintiff's

B) Determination on the part on the claim for additional tax

The Defendant’s revocation of the imposition of penalty tax ex officio among the primary dispositions in accordance with the purport of the Supreme Court Decision 2010Du12347 Decided October 18, 2012 is as seen earlier.

Therefore, the claim for revocation of the imposition of penalty tax among preliminary claims is unlawful because it seeks to revoke the administrative disposition that does not exist.

3. Conclusion

The part of the Plaintiff’s claim for revocation of the disposition of imposition of capital gains tax of KRW 120,504,855 is unlawful. The part of the claim for revocation of the disposition of imposition of capital gains tax of KRW 120,504,855 is dismissed as it is without merit. The part of the claim for revocation of the disposition of imposition of capital gains tax of KRW 120,504,855 among the conjunctive claims is dismissed as it