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(영문) 서울고등법원 2018.04.12 2017누79839
양도소득세등부과처분취소
Text

1. The plaintiff's appeal and the defendant's appeal are all dismissed.

2. The costs of appeal shall be borne by each party.

3. The judgment of the court of first instance is rendered.

Reasons

1. The reasoning of the judgment of the court of first instance, which cited the reasoning of the judgment of the court of first instance, is the same as the reasoning of the judgment of the court of first instance, except for the case written by dismissal as provided in paragraph (2). Thus, it shall be quoted pursuant to Article 8(2) of the Administrative Litigation Act and the main sentence of

(hereinafter the meaning of the abbreviationd language used in this section is the same as that of the judgment of the court of first instance) 2.

A. The reasoning of the judgment of the court of first instance is as follows: 4-7 lines under 5 pages.

First, I would like to examine the argument against res judicata. The 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 of the tax base and tax amount, which are the tax obligations recognized by the taxation disposition by the taxation authority, i.e., the legality of the pertinent taxation disposition (see Supreme Court Decision 95Nu1880, Jun. 25, 1996). Meanwhile, since the defendant in the lawsuit seeking revocation is the administrative agency, the res judicata in the lawsuit seeking revocation against the administrative agency is against the state or public organization to which the pertinent disposition belongs (see Supreme Court Decision 98Da10854, Jul. 24, 1998).

However, the relevant final and conclusive judgment was unlawful on the premise that the Plaintiff acquired transfer margin by transferring the pertinent part of the land at issue to J and I among the secondary taxation by the Yeongdeungpo Tax Office, but the part of the third contract on the land at issue between the Plaintiff and H still remains valid, but it ordered the revocation of the entire secondary taxation, not only the excess tax amount, on the ground that there was no legitimate statement of tax amount.

Therefore, the relevant final and conclusive judgment is based on the premise that the tax authority can calculate the legitimate tax amount and impose it again in accordance with the purport of the judgment, and the tax authority shall supplement the reasons for illegality stated in the previous judgment based on the same reason for taxation and calculate the legitimate tax amount

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