Daegu District Court-2015-Gu Partnership-259 ( December 15, 2015)

If the actual transaction price has been reported by the actual transaction price even though it can be reported based on the standard market price, the actual transaction price is the standard for calculating the transfer margin.

Where assets acquired before the date of fictitious acquisition are transferred and reported to the actual transaction price without reporting them based on the standard market price, the calculation of transfer margin shall exclude the application of the standard market price and the actual transaction price shall be applied.

Article 114 of the former Income Tax Act shall be determined, revised, and notified of the tax base and amount of tax

2017 To revoke the disposition of imposing capital gains tax;

- Appellants

United Kingdom A

BB Director of the Tax Office

December 15, 2015

2017.09.22

o October 20, 2017

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff.

Purport, purport of appeal and request for retrial

The judgment subject to a retrial and the judgment of the first instance shall be revoked. On July 1, 2013, the part exceeding KRW 57,987,525 of the disposition of imposition of capital gains tax of KRW 113,782,82, and KRW 57,820,272 of the disposition of imposition of KRW 3,34,411 of additional tax and KRW 57,820 of the disposition of imposition of KRW 57,820,272, which was imposed by the defendant (hereinafter referred to as "defendant") against the plaintiff (hereinafter referred to as "Plaintiff") shall be revoked.

1. Determination of the original judgment

The following facts are significant or obvious to this court in terms of records:

A. On April 29, 2004, the Plaintiff transferred 390,000,000, calculated tax amount of 54,536,514, and the tax amount to be voluntarily paid as KRW 49,082,863,00,000,000 to Do○○○○○○○○○○-dong 611-11,000, 611-17, and 63,000 square meters and its ground (hereinafter collectively referred to as the “instant real estate”), which was owned by the Plaintiff, to Do○○○○○○-do, and thereafter, the Plaintiff reported and paid the transfer income tax for 2004, with the transfer value of the instant real estate as KRW 390,00,536,514, and the tax amount to be voluntarily paid as KRW 49,082,863.

B. On July 4, 2013, the Defendant: (a) investigated the difference between the transfer value reported by the Plaintiff and the acquisition value reported by Do○○○○○; (b) confirmed that the actual transfer value was 710,00,000; and (c) on July 4, 2013, issued a disposition of imposition on the remaining 117,06,580 won (hereinafter referred to as “instant disposition”) after deducting the calculated tax amount of KRW 113,603,82,826 from the calculated tax amount of KRW 171,60,82,826 from the calculated tax amount of KRW 57,820,272 from the additional tax amount of KRW 57,820,514 from the assessed tax amount of KRW 117,06,580 (hereinafter referred to as “instant amount”).

C. On February 9, 2015, the Plaintiff filed a lawsuit against the Defendant seeking the revocation of the instant disposition (○○ District Court 2015Guhap259). On December 15, 2015, the ○○ District Court rendered a judgment of the first instance court dismissing the Plaintiff’s claim on December 15, 2015, and the reason is that “the rectification of the tax base and tax amount based on the actual transaction price confirmed by the head of the competent tax office is lawful, as the transfer value of real estate reported by the Plaintiff is different from the fact, and thus, the Plaintiff’s assertion that the tax base and

D. Although the Plaintiff filed an appeal against the judgment of the first instance (○○ High Court 2016Nu4004), the ○ High Court rendered a judgment subject to a retrial that dismissed the Plaintiff’s appeal on the same ground as the judgment of the first instance on October 14, 2016. The Plaintiff filed an appeal against the judgment subject to a retrial (Supreme Court Decision 2016Du56356), but the judgment of the first instance and the judgment subject to a retrial became final and conclusive as the final judgment was dismissed on February 3, 2017.

2. The plaintiff's assertion

Since the instant real estate is used as Smarket as a whole as a building for business use at the time of transfer to Do○○, the transfer income tax base or tax amount ought to be calculated based on the standard market value, not the actual transaction value. However, the transfer income tax was determined based on the actual transaction value of the housing within the housing speculation area on the wind that the Plaintiff’s agent files a false report on housing pursuant to the public record while filing a transfer income tax report. Therefore, the instant disposition is unlawful and thus, it should be revoked as it is unlawful in violation of the substance over form principle. Nevertheless, in the judgment subject to a retrial, there is a ground for retrial falling under “when the judgment was omitted on important matters affecting the judgment” under Article 451(1)9 of the Civil Procedure Act.

3. Whether the litigation for retrial of this case is legitimate

A. Relevant legal principles

The proviso of Article 451(1) of the Civil Procedure Act, which applies mutatis mutandis under Article 8(2) of the Administrative Litigation Act, provides that “if a party asserts any ground for retrial by an appeal, or does not know it, it may not file a lawsuit for retrial.” In addition, the grounds for retrial under Article 451(1)9 of the Civil Procedure Act, which lacks the judgment on important matters that may affect the judgment, is an omission of judgment as to the party’s means of attack and defense, and can be known through the service of the original judgment. Therefore, barring any special circumstance, it is reasonable to deem that such grounds for retrial knew the existence of such grounds for retrial at the time of being served with the original copy of the judgment subject to retrial (see, e.g., Supreme Court Decisions 2009Du16411, Jan. 14, 2010; 93Da43798, Dec. 14, 1993).

B. Determination

In light of the above legal principles, even if there were grounds for a retrial omitting judgment as alleged by the Plaintiff in the judgment subject to a retrial, insofar as the Plaintiff was served with the original copy of the judgment after the judgment subject to a retrial was rendered and filed a final appeal with the Supreme Court within the period of final appeal, it is reasonable to deem that the Plaintiff, at that time, filed a final appeal with the Supreme Court upon knowing that there had already existed such grounds for a retrial. Therefore, regardless of whether the Plaintiff actually asserted such grounds in the final appeal, the Plaintiff may not file a lawsuit for retrial on the ground that there was omission in judgment in the judgment subject to a retrial as a ground for a retrial, regardless of whether the Plaintiff actually asserted such grounds

4. Conclusion

As such, the lawsuit of this case is unlawful and thus, it is decided as per Disposition.