A preceding judgment has res judicata effect on a lawsuit seeking nullification of a taxation disposition because it has res judicata effect.

As a final and conclusive judgment dismissing a claim for revocation of a tax disposition has res judicata effect on the legal nature of the disposition, and thereafter, the plaintiff cannot seek nullification of the final and conclusive judgment which is dismissed in the lawsuit for revocation of the tax disposition, the res judicata effect of the final and conclusive judgment, as well as the lawsuit for seeking nullification of the said disposition.

F Reference

Article 89 (Non-Taxable Capital Gains)

2016Gudan61122 Nullification of a disposition of imposition of capital gains tax

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○ Head of tax office

March 17, 2017

April 7, 2017

1. The plaintiff's claim is dismissed.

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

On January 1, 2013, the Defendant of the Gu Office confirmed that the imposition of capital gains tax of KRW 22,593,863 against the Plaintiff in the year 2011 is null and void.

1. Details of the disposition;

가. 원고와 그 자녀인 ◎◎◎는 2006. 11. 16. ☆☆☆으로부터 서울 ◇◇구 ◇◇동 1***-** 대 162.3㎡(이하 '이 사건 토지') 및 그 지상 건물(이하 '이 사건 건물')을 각 1/3지분과 2/3지분으로 공동매수하였다가 2011. 6. 10. ###에게 이를 양도하였는데, 원고는 이 사건 건물이 1세대 1주택에 해당함을 전제로 양도소득세신고를 하지 않았다.

B. On January 1, 2013, the Defendant: (a) registered the instant building as an exclusive ownership; and (b) at the time of the transfer of the said building, the Plaintiff constituted a separate household separate from an exclusive unit, and thus does not constitute the same household at the time of the transfer of the said building; and (c) issued a disposition imposing capital gains tax of KRW 67,781,591, which reverts to the year 201 (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed a request for review with the Commissioner of the National Tax Service on July 19, 2013, but was dismissed on September 16, 2013. The Plaintiff’s ground for recognition was the fact that there was no dispute, Gap’s evidence 10, Eul’s evidence Nos. 10, Eul’s evidence Nos. 1 and 2 (including Serial Nos. 1) and the purport of the entire pleadings.

2. Determination on the defense prior to the merits

The defendant asserts that the lawsuit of this case with the same content as the previous suit shall be dismissed in conflict with the res judicata, since the plaintiff filed a lawsuit to revoke the disposition of this case against the defendant prior to the lawsuit of this case against the defendant, and the judgment has become null and void.

A lawsuit seeking revocation of a taxation disposition is based on the substantive and procedural illegality of the taxation disposition, and the subject matter of the trial is the objective existence and validity of the tax base and tax amount, which are the tax obligations recognized by the taxation authority by the taxation disposition, i.e., the propriety of the taxation disposition concerned, which are the subject matter of the review. If a judgment dismissing a claim seeking revocation of a taxation disposition becomes final and conclusive, the plaintiff cannot seek confirmation of invalidity on the ground that the judgment becomes null and void, and thus, the plaintiff cannot seek confirmation of invalidity of the final and conclusive judgment dismissed in the lawsuit seeking revocation of the taxation disposition (see, e.g., Supreme Court Decision 2002Du3669, May 16, 2003). In full view of the entries in subparagraphs 1 and 2, and the purport of the whole arguments and arguments, the plaintiff filed a lawsuit claiming revocation of the taxation disposition against the defendant on December 11, 2013, and the court rendered a ruling to dismiss the plaintiff's claim on December 13, 2014.

Therefore, the claim of this case goes against the res judicata of the previous judgment that held that the disposition of this case was lawful, and therefore, it is without merit to examine further.

3. Conclusion

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