early 2011west0406 ( October 28, 2011)

It is difficult to regard a seizure disposition as void as a matter of course.

It is difficult to deem that there is a serious and apparent defect in appearance to the extent that the attachment disposition is deemed null and void as a matter of course.

2011Guhap10713 Nullification of a seizure disposition

IsaA

○ Head of tax office

June 21, 201

August 12, 201

1. The plaintiff's claim is dismissed.

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

Each claim attachment disposition against ○○M’s shares 14,500 shares, Co., Ltd. on November 16, 2007, which the Defendant reported to the Plaintiff, on December 14, 2005, against the provisional registration of the right to claim ownership transfer registration on the real estate listed in the separate sheet, is confirmed to be invalid.

1. Details of the disposition;

(a) Imposition of value-added tax;

On January 14, 2005, the Defendant issued a disposition of imposition of value-added tax of KRW 29,856,860 for the first period of value-added tax of KRW 200 for the Plaintiff, KRW 32,208,970 for the second period of value-added tax of KRW 27,901,860 for the second period of value-added tax of KRW 13,772,00 for the second period of value-added tax of KRW 103,739,760 for the second period of value-added tax of KRW 13,772,00 for 201 for the second period of value-added tax of KRW 103,739,76,860 for the second period of value-added tax of KRW 29,856,860 + KRW 32,208,970 + KRW 27,901,860 for the second period of tax payment

(b) Imposition of global income tax;

1) On April 3, 2000, ○○ Construction Co., Ltd. (hereinafter referred to as the “○○○ Construction”) entered into a contract on vicarious sale of commercial buildings, sports centers, kindergartens, etc. in the redevelopment apartment complex with the 3rd Housing Improvement Development Cooperatives in the area of Seoul Special Metropolitan City, Do, and the redevelopment apartment complex.

2) On March 18, 2003, the director of the Seoul Regional Tax Office conducted a tax investigation on △△ integrated construction, and as a result, confirmed that △△ comprehensive construction did not report the amount of KRW 4,143,839,563 as the amount of revenue, and imposed corporate tax, etc. on △△ integrated construction on December 8, 2003.

3) In the national tax proceeding, which was brought against the disposition of imposition of corporate tax, etc. by ○○ Construction Co., Ltd., on July 23, 2004, the National Tax Tribunal rendered a decision that the amount of KRW 4,143,839,563 to be reverted to the Plaintiff, a stock company, a stock company, and the director and team leader of △△△△ Korea Co., Ltd.; thus, the said KRW 4,143,839,563 is deemed to be reverted to the said construction, and the corporate tax, etc. should be imposed on the said KRW 4,143,839,563, and the amount reverted to the Plaintiff among the said KRW 4,143,839,563, supra, was 52,604,740 won (the amount reverted to the Plaintiff in the year 200, KRW 23,856,470).

4) On November 2, 2004, the director of the Seoul Regional Tax Office notified the Defendant of taxation data according to the above decision of the National Tax Tribunal. On July 5, 2005, the Defendant decided and notified the Plaintiff of global income tax amounting to KRW 114,618,390, and global income tax amounting to KRW 80,000,090 for the year 2001 (hereinafter “instant disposition imposing global income tax”).

5) On May 8, 2006, the Plaintiff was dissatisfied with the disposition of imposition of global income tax of this case and filed a lawsuit seeking its revocation under this court 2006Guhap1691, but this court rendered a judgment dismissing the Plaintiff’s claim on January 17, 2007, and the above judgment became final and conclusive on February 7, 2007.

(c) Imposition of capital gains tax;

1) On September 1, 2006, the Defendant imposed capital gains tax of KRW 186,519,800 on the Plaintiff for the year 2000 (hereinafter “instant disposition imposing capital gains tax”), on the ground that the Plaintiff acquired the right to sell some of the commercial buildings in the redevelopment apartment complex and the sports center, but transferred the proceeds from resale to a third party.

2) On September 14, 2007, the Plaintiff was dissatisfied with the disposition of imposition of the transfer income tax of this case, and filed a lawsuit seeking its revocation under this Court 2007Gudan11743, and this court rendered a judgment revoking the disposition of imposition of the transfer income tax of this case on January 30, 2009. The Defendant appealed against the above judgment, but the Seoul High Court dismissed the above appeal on September 23, 2009 (2009Nu5673) (2009Nu5673). The Defendant appealed to the Supreme Court, but the Defendant appealed to the Supreme Court on January 14, 2010 (2009Du18103) and the said judgment became final and conclusive.

(d) Attachment disposition;

1) In order to collect all of the instant value-added tax, global income tax, and capital gains tax on the premise that the Plaintiff was in arrears, the Defendant issued a provisional attachment disposition on December 14, 2005, on November 16, 2007, on the provisional attachment disposition on 14,500 shares of ○○M Co., Ltd., Ltd., and on October 5, 2009, each claim attachment disposition on 6,000 shares of △△ Industrial Development Co., Ltd., and 21,00 shares of Cheongdo Co., Ltd., Ltd. (hereinafter referred to as “instant attachment disposition”).

2) On January 14, 2011, the Plaintiff filed a tax appeal with the Tax Tribunal against the instant attachment disposition, but the said claim was dismissed on March 28, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 2, 3 and 4, and purport of the body before oral argument

2. Whether the seizure disposition of this case is legitimate

A. The plaintiff's assertion

The instant disposition of imposition of capital gains tax was revoked by a final judgment, and the Plaintiff was confined to detention houses and prisons in criminal cases during the period in which the Defendant imposed the value-added tax, and thus, did not cause added value by trading goods and services and received notification of the said disposition, and thus, the instant disposition of imposition of capital gains tax is also null and void. Therefore, the instant disposition of attachment is based on invalid taxation,

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) In order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and it is objectively clear that the defect is a serious violation of the important part of the law, and in determining whether the defect is significant and obvious, the purpose, meaning, and function of the law should be examined as a teleological basis, and at the same time, reasonable consideration should be made on the specificity of the specific case itself (see, e.g., Supreme Court Decision 2005Du14363, Jun. 30, 2006). In an administrative litigation seeking the invalidation of the administrative disposition by asserting the invalidity of the administrative disposition as a matter of course, the plaintiff is liable to assert and prove the reason why the administrative disposition is null and void (see, e.g., Supreme Court Decision 91Nu6030, Mar. 10, 1992). This is

2) In light of the above legal principles, the following circumstances can be acknowledged by comprehensively taking into account the developments leading up to the present disposition, namely, ① the instant disposition of transfer income tax, which is the premise of the attachment disposition, became final and conclusive upon the final and conclusive judgment dismissing the Plaintiff’s request. ② The Plaintiff appears to have not gone through any appeal procedure against the instant disposition; ② the Plaintiff is unable to submit any data that can be deemed unlawful; ③ the Plaintiff’s disposition of transfer income tax as of October 5, 209, which is the date of the closing of argument, is the most adjacent to the date of the instant attachment disposition, exceeds KRW 186,519,80,870 (see, e.g., Supreme Court Decision 272,690,690,670, total amount of KRW 186,519,80,80,000, which is the premise of the attachment disposition, and the Plaintiff’s disposition of transfer income tax as of KRW 186,706,760,7270,70.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.