Seoul Administrative Court 2008Guhap31758 ( September 30, 2009)

If the appellate court already asserted a cause for a retrial in regard to a decision subject to a retrial, it does not constitute a cause for retrial.

Even in cases where a suit for retrial was instituted on grounds for a retrial under the Civil Procedure Act, if a party had already asserted such grounds in the appellate court on the judgment subject to retrial, or did not knowingly assert it, it does not constitute grounds for retrial.

Article 451 of the Civil Procedure Act

2011. Judgment to revoke the disposition of imposing value-added tax, etc.

SUUGE

Head of Seocho Tax Office

Seoul Administrative Court Decision 2008Guhap31758 Decided September 30, 2009

Seoul High Court Decision 2009Nu36578 Decided November 4, 2010

August 18, 2011

September 22, 2011

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff.

Purport, purport of appeal and request for retrial

The judgment subject to a retrial and the judgment of the first instance shall be revoked. The disposition that the defendant (limited to the defendant; hereinafter the same shall apply) imposed on the plaintiff (the plaintiff; hereinafter the same shall apply) value-added tax of 202 on October 10, 2007, value-added tax of 15,184,190 won, value-added tax of 83,504,0203, value-added tax of 1 year 2003, value-added tax of 50,445,250 won, value-added tax of 2 year 203, value-added tax of 9,369,50 won, value-added tax of 1 year 204, value-added tax of 85,796,260 won, value-added tax of 2 year 205, value-added tax of 830,510 won, and of 2 year 2005, 2004, 206364, 285.

1. Progress of this case

The following facts are clear in records:

A. The Plaintiff filed the instant lawsuit against the Defendant prior to the retrial seeking the revocation of the imposition of value-added tax and the notice of change in income amount stated in the purport of the claim under the Seoul Administrative Court 2008Guhap31758, and the court of first instance rendered a judgment dismissing all the Plaintiff’s claim on September 30, 2009.

B. The Plaintiff dissatisfied with this and filed an appeal with this Court No. 2009Nu36578, but this Court rendered a judgment subject to a retrial that dismissed the Plaintiff’s appeal on November 4, 2010.

C. The Plaintiff re-appealed to the foregoing judgment and appealed by Supreme Court Decision 2010Du27059, but on March 24, 2011, the Plaintiff’s final appeal was dismissed, and the judgment subject to a retrial became final and conclusive.

2. Existence of grounds for retrial

A. The plaintiff's assertion

The sum of rent or rent of 10,00,000 won per 20,000,000 won during the 2nd taxable period of 2004, 660,000,000 won during the 2nd taxable period of 2005, 660,000,000 among the 2nd taxable period of 2nd taxable period of 2004, 200, 200, 360, 206, 40, 206, 200, 206, 200, 204, 200, 206, 206, 206, 200, 206, 200, 206, 200, 206, 206, 400, 200, 206, 206, 206, 206, 206, 2006, 206, 3, 200

Therefore, the defendant should use only the amount remaining after deducting the above amount from the calculation of the deemed rent as the basis for the calculation of the deemed rent.

The judgment subject to a retrial omitted the judgment on the Plaintiff’s assertion, which constitutes grounds for retrial under Article 451(1)9 of the Civil Procedure Act, and thus, the judgment subject to a retrial should be revoked.

B. Determination

(1) Relevant legal principles

Article 451(1)9 of the Civil Procedure Act provides that "when a judgment is omitted on important matters that may affect a judgment," the grounds for a retrial shall be determined as follows: Provided, That the meaning of the grounds for a retrial refers to an attack and defense method submitted by the parties, and where a judgment is not indicated in the reasoning of the judgment with regard to those that may affect the text of the judgment, the judgment may not be deemed to have been omitted even if the judgment was erroneous (see Supreme Court Decision 93Nu97, Jun. 22, 1993).

In addition, according to the proviso of Article 451(1) of the Civil Procedure Act, the grounds for which a party had asserted or did not assert, cannot again file a lawsuit for retrial on the ground that they had asserted or did not assert. Thus, even in cases where a party filed a lawsuit for retrial on the grounds falling under any subparagraph of Article 451(1) of the Civil Procedure Act, if the party had already asserted, or did not know, such grounds in the appellate court as to the judgment subject to retrial, it shall be deemed that it does not constitute grounds for retrial, and the lawsuit for retrial shall also be unlawful (see, e.g., Supreme Court Decisions 93Da39553, Nov. 9, 1993; 91Da29057, Nov. 12, 1991; 91Da29057, Nov. 12, 199). Thus, if the judgment of the court below was omitted on the grounds of appeal, it cannot be seen that there were no special grounds for retrial under Article 1608 of the Civil Procedure Act.

(2) Determination

As to this case, we examine whether there are grounds for retrial under Article 451(1)9 of the Civil Procedure Act, as alleged by the Plaintiff in the judgment subject to a retrial.

(A) First, the Plaintiff asserted in the judgment subject to a retrial as follows. “ Even if the monthly rent is deducted from the down payment and the deposit for lease on behalf of the lessee, the amount of the deduction would reach KRW 4,665,201,960 if the amount of the deduction would reach KRW 4,665,20,960, which is the amount of the secured debt (or unjust enrichment equivalent to the rent), overdue management expenses, and taxes and public charges borne by the lessee on behalf of the lessee, and eventually, even if the Plaintiff did not incur rent income, the Plaintiff would have owned the down payment and the deposit for lease from January 2, 2003 to February 2, 2009, and thus, it was unlawful to impose each of the imposition values of the instant cases on the grounds that the lease income of KRW 1,090,909,089 was generated from each of the above down payment and the deposit for lease.”

On the other hand, the court of review rejected the plaintiff's assertion as follows as a result of the review on the plaintiff's argument.

In addition, in calculating the lease deposit or the lease deposit which serves as the basis for the calculation of deemed rent, if the lessee agrees to deduct the unpaid rent, management fee, various public charges, etc. from the deposit at the time of arrears and to refund the remainder at the time of termination of the lease, only the remainder after deducting the rental fee, unpaid management fee, various public charges, etc. as of the end of the taxable period, not the full amount of the lease deposit or the lease deposit received by the lessor at the time of the first supply of the service, shall be based on the calculation of deemed rent (see, e.g., Supreme Court Decision 95Nu4018, Jul. 14, 1995).

According to the above facts, even if the lease contract was concluded between the plaintiff and the 00 n&C and the Dabbb on the building of this case and then the contract was canceled or terminated on the grounds of fraud, the above lessee continued to use the leased object without ordering it, and the plaintiff had a relation of de facto deduction from the lease deposit by means of appropriation or offsetting, etc. of the amount corresponding to the rent which is incurred in the future. Thus, the series of processes where the plaintiff allowed the plaintiff to use the building of this case from 00 n&C and the Dob to use the building of this case constitutes "supply of services" under the Value-Added Tax Act, and thus, the plaintiff is liable for payment of value-added tax. Furthermore, according to the contents of each lease contract between the plaintiff and the above tenant, if the plaintiff were to deduct the management fee and various public charges to be borne by the lessee from the lease deposit, it is not necessary for the plaintiff to pay the rental deposit, as long as the above contract did not have any effect on the tenant's payment of the rental deposit.

Therefore, it is clear that the plaintiff's assertion on the grounds for retrial has already been sufficiently examined in the litigation process subject to retrial, and the decision on the argument is made in the judgment subject to retrial

(B) In addition, the Plaintiff asserted in detail the same grounds as the grounds stated in the petition for review of this case in the petition for final appeal against the judgment subject to review as the grounds for final appeal (the first ground for final appeal among the grounds for final appeal filed by the Plaintiff on January 5, 201).

(C) Even if a case was not asserted as the grounds of appeal, if there was omission in the judgment subject to a retrial, the original of the judgment may be served, and if so, the reasons for the judgment can be read. Thus, barring any special circumstance, the Plaintiff could have known the omission of the judgment at the time of being served with the original copy of the judgment subject to a retrial, and barring such circumstance, the Plaintiff could have asserted it as the grounds of appeal. Thus, the Plaintiff

(D) Therefore, the instant lawsuit for retrial is unlawful as it asserts that it does not constitute legitimate grounds for retrial.

3. Conclusion

Therefore, it is decided as per Disposition by the assent of all participating Justices to dismiss the litigation of this case.