Seoul Administrative Court-2016-Gu Partnership-76985 ( October 25, 2017)

The agreed amount received in return for the withdrawal of a master-do lawsuit shall fall under the honorarium of other income.

The plaintiff's received amount is equivalent to other income honorarium because the nature of the amount to be paid to lessees in the agreement is agreed upon to resolve disputes.

Article 21 of the former Income Tax Act (Amended by Act No. 11146, Jan. 1, 2012); Article 10 of the former Commercial Building Lease Protection Act (Amended by Act No. 12042, Aug. 13, 2013);

2017Nu54243 Other global income and revocation of such disposition

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■■■세무서장

September 26, 2017

October 17, 2017

1. The following part of the judgment of the first instance shall be revoked:

The Defendant’s appeal against the Plaintiff on December 8, 2015, which is filed by the Plaintiff in excess of KRW 20,042,323 (including additional tax) of the imposition of global income tax of KRW 38,195,590 (including additional tax) for the year 201. The Plaintiff’s remaining appeal is dismissed.

3. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Cheong-gu and purport of appeal

The judgment of the first instance shall be revoked. The imposition of global income tax of KRW 38,195,590 (including additional tax) on the Plaintiff on December 8, 2015 by the Defendant shall be revoked.

1. Details of the disposition;

The court's explanation on this part is consistent with the corresponding part of the judgment of the court of first instance, except in the following cases: Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act:

E. On December 8, 2015, the Defendant deemed that the key issue amount of the instant case constituted other income as a honorarium under Article 21(1)17 of the former Income Tax Act (amended by Act No. 11146, Jan. 1, 2012; hereinafter the same) and notified the Plaintiff of the rectification and notification of the global income tax of KRW 38,195,590 (including additional tax) that reverts to the Plaintiff on December 8, 2015. On March 7, 2016, the Plaintiff filed a request with the National Tax Service for an examination on the National Tax Service on March 7, 2016, but was dismissed on June 20, 2016. After that, the Defendant revoked ex officio the excess amount, the Defendant issued a correction and notification of the global income tax of KRW 20,042,323 (including additional tax) that reverts to the Plaintiff (hereinafter referred to as “instant disposition of imposition of global income tax”).

If an administrative disposition is revoked, such disposition is invalidated, no longer exists, and a lawsuit seeking revocation against a non-existent administrative disposition is unlawful as there is no benefit in legal proceedings (see, e.g., Supreme Court Decision 2012Du18202, Dec. 13, 2012). As seen earlier, the Defendant revoked part of penalty tax ex officio among the initial imposition disposition. As such, the part of the lawsuit in the instant case is seeking revocation of the non-existent disposition, and thus, is unlawful as there is no benefit in legal proceedings.

3. Whether the instant disposition is lawful

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

4. Conclusion

Therefore, the above part of the lawsuit in this case is unlawful and dismissed, and the remaining part of the lawsuit in this case is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with the conclusion as to the above part of the revocation, the above part of the lawsuit in the judgment of the court of first instance is revoked and this part of the lawsuit is dismissed, and the remaining appeal of the plaintiff