Seoul High Court 2012Nu17157 (22 March 22, 2013)

In case of a disposition of increase or decrease, the original disposition is extinguished, and only the disposition of increase or decrease is subject to litigation.

Since the tax authority filed a lawsuit seeking the cancellation of the initial disposition, even though the tax base and tax amount were imposed and imposed by again determining the original tax base and tax amount of capital gains tax, the lawsuit in this case is unlawful as it is deemed as the object of litigation by absorbing the disposition for

2013Du7353 Revocation of Disposition of Imposing capital gains tax

IsaA

Head of Namyang District Tax Office

Seoul High Court Decision 2012Nu17157 Decided March 22, 2013

The judgment of the court below is reversed.

The judgment of the first instance shall be revoked, and the lawsuit of this case shall be dismissed.

All costs of the lawsuit shall be borne by the plaintiff.

Judgment ex officio is made.

In a case where an increase or decrease is made after a taxation was made, the said increase or decrease disposition is not an original disposition but an additional determination is not made on only the tax base and amount exceeding the original tax base and amount in the original disposition, but a single tax base and amount as a whole including the tax base and amount in the original disposition. Thus, the original disposition is naturally extinguished due to absorption of the increase or decrease disposition and is subject to litigation (see, e.g., Supreme Court Decision 98Du16149, Sept. 8, 2000).

According to the records, the defendant issued a disposition of imposition of each transfer income tax on the plaintiff on November 26, 2009 and 2009, but again determined the tax base and amount of each transfer income tax on March 1, 2008 and 2009 and imposed a tax on the plaintiff. However, the plaintiff filed the lawsuit in this case seeking partial cancellation of each disposition on April 21, 201, which was originally filed on November 26, 2009. Thus, the lawsuit in this case is unlawful since the lawsuit in this case was absorbed into each disposition of increase or decrease as of March 1, 201 and the extinguished disposition shall be deemed as the object of dispute.

Nevertheless, the court below affirmed the judgment of the court of first instance that dismissed the plaintiff's claim by putting each disposition of November 26, 2009 as the object of the lawsuit, which was originally considered as the object of the lawsuit. Thus, the court below erred by misapprehending the legal principles on the disposition of increased or decreased correction and the object of the lawsuit, which affected the conclusion of the judgment.

Therefore, the judgment of the court below is reversed. Since this case is sufficient for the Supreme Court to directly judge, the judgment of the court of first instance is revoked, and the lawsuit of this case is dismissed. The total costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices