Since a judgment dismissing a claim for cancellation becomes final and conclusive, there is res judicata in that there is res judicata in that the disposition is legitimate.

Since a judgment dismissing a claim for revocation becomes final and conclusive, the res judicata effect has been established in that it is legitimate for the disposition of revocation. Therefore, the claim seeking nullification of the disposition on the premise that this part of the disposition is unlawful is without merit.

Article 21 of the Enforcement Decree of the Income Tax

Suwon District Court 2014Guhap6952 Invalidity of Income Tax Imposition Disposition

AA

00. Head of tax office

on April 21, 2016

on October 19, 2016

1. The plaintiff's claim is dismissed.

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

On December 1, 2009, the imposition of income tax of KRW 29,400,00,000 against the Plaintiff by the former Defendant at office is invalid.

1. Details of the disposition;

A. On March 18, 2009, the Plaintiff concluded a sales contract with the purchaser BB and CCC (hereinafter referred to as the “Buyers”) to sell the land and its ground land at KRW 1,400,000,000, Sungnam-dong o-dong 221-5, and received the down payment of KRW 140,000,000 on May 15, 2009, while cancelling the said sales contract, the Plaintiff paid the buyer a total of KRW 280,000,000 (i.e., contract deposit of KRW 140,000,000 + penalty of KRW 140,000,000).

B. On December 1, 2009, the Defendant decided and notified the Plaintiff of KRW 29,400,000 (the KRW 28,000,000 + penalty KRW 1,400,000) for the reason that the Plaintiff did not perform its withholding duty while paying a penalty of KRW 140,000 to the purchaser (hereinafter “instant disposition”).

C. The Plaintiff is dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 15, 2010 after filing an objection on February 17, 2010, and the Tax Tribunal dismissed the claim on November 1, 2010. After which the Plaintiff filed a lawsuit seeking revocation of KRW 28,000,000 from the instant disposition on November 24, 2010 (U.S. District Court Decision 2010Guhap1627), but the Suwon District Court declared that the claim is dismissed on February 17, 201, and the judgment became final and conclusive on March 15, 2011 (based on recognition), and the purport of the entire pleadings and arguments are written in the absence of dispute.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

29,400,00 won, withheld by the Defendant from the Plaintiff, was not deducted as the amount of tax paid at the time when the buyer files a comprehensive income tax, and thus, the instant disposition is null and void as a double taxation.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Determination as to the principal portion of the instant disposition

Since the subject matter of an administrative disposition is the illegality of an administrative disposition, if a judgment dismissing a claim in a revocation lawsuit becomes final and conclusive, the res judicata effect has been raised as to the legitimacy of the disposition, and thereafter, the parties concerned cannot seek the confirmation of invalidity on the ground that the disposition is null and void.

Therefore, res judicata of a final and conclusive judgment dismissed in a revocation lawsuit also extends to a lawsuit seeking a confirmation of invalidity of such administrative disposition (see, e.g., Supreme Court Decision 92Nu6891, Dec. 8, 1992). Meanwhile, a lawsuit seeking revocation of a tax disposition is based on the substantive and procedural illegality of the tax disposition, and its subject matter is subject to review, namely, objective existence or absence of tax base and tax amount, which is a tax obligation recognized by the tax authority’s taxation disposition, i.e., the legality of the relevant taxation disposition. The final and conclusive judgment dismissing the claim for revocation of a tax disposition becomes lawful, and the plaintiff cannot seek a confirmation of invalidity of the final and conclusive judgment, and thus, the res judicata effect of the final and conclusive judgment dismissed in the lawsuit seeking a confirmation of invalidity of such taxation disposition extends to the lawsuit seeking a confirmation of invalidity of the said taxation disposition (see, e., Supreme Court Decision 2002Du3669, May 16, 2003

In light of the above legal principles, since the judgment dismissing the plaintiff's request for revocation of the principal tax of this case becomes final and conclusive, a res judicata has been established to the effect that the disposition concerning the principal tax of this case is legitimate, the plaintiff's assertion seeking nullification of this part of the disposition is without merit, on the premise that this part of the disposition is unlawful.

(2) Determination as to the portion of penalty tax during the instant disposition

Under the tax law, in cases where a taxpayer violates various duties, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, the taxpayer’s intent and negligence as administrative sanctions are not considered. On the other hand, such sanctions cannot be imposed if there are justifiable grounds, such as where it is unreasonable for the taxpayer to be aware of his/her duty, or where it is unreasonable for him/her to expect the fulfillment of his/her duty, and where it is unreasonable for him/her to do so (see Supreme Court Decision 2003Du13632, Jan. 27, 2005).

(see, e.g., an administrative litigation seeking confirmation of invalidity of an administrative disposition by asserting that the administrative disposition is void as a matter of course.

In the case of the Plaintiff, the Plaintiff is liable to assert and prove the reason why the administrative disposition is invalid (see, e.g., Supreme Court Decision 9Du11851, Mar. 23, 2000).

In light of the above legal principles, the Plaintiff’s evidence and circumstance alone cited by the Plaintiff

Income tax calculated by applying the withholding tax rate to the penalty paid to the purchaser

If the plaintiff's failure to know that it would have been unreasonable, the plaintiff's failure to know that it would have been caused by such failure.

It is unreasonable to expect the parties to fulfill their obligations in such circumstances as to be justified or to expect the parties to do so.

It is insufficient to recognize that there is a circumstance, and there is no other evidence to recognize it.

Even if not, the buyer reported the global income tax base in 2009.

The amount of income received from the plaintiff in the column of "total income amount of each other (as referred to in subparagraphs 2 and 3)";

70,000,000 won, all of 14,000,000 won in the column of “tax amount collected by withholding or tax association”

In light of the above, the defect in the disposition of this case is serious or obvious.

Therefore, the Plaintiff’s claim on this part is without merit.

3. Conclusion

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