Cho High Court Decision 2004Do1056 (Law No. 76, 2004)

The time period for filing a suit has expired and is illegal because it also conflicts with res judicata effect.

In addition, the decision of dismissal of a national tax trial has been notified and it has been filed more than 90 days after the filing of a lawsuit with the same purport of the claim, and has been dismissed and finalized for the same reason, it goes against the res judicata effect.

Article 56 of the Framework Act on National Taxes

201Guest 26124 Decision of rectification, revocation, etc.

IsaA

Head of the District Tax Office

April 17, 2012

May 22, 2012

1. The instant lawsuit shall be dismissed.

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

1. The primary purport of the claim

With respect to the Plaintiff’s donation to ASEAN of 00 OO apartment No. 000,000,000 O apartment No. 182.20 square meters (hereinafter “the apartment of this case”) in Gangnam-gu Seoul, and the Defendant did not necessarily make a notification to the Plaintiff when the Defendant makes a decision to revise the capital gains tax pursuant to Article 91 of the Property Tax Management Regulations, and the Defendant imposed and notified “00 capital gains tax for the year 2003” on October 1, 2003 to the Plaintiff.

2. Preliminary purport of claim

With respect to the Plaintiff’s donation to ASEAN, the Plaintiff completed the registration of ownership transfer on April 24, 2003 under the Registration of Real Estate Act, and the Defendant imposed and notified “00 won of capital gains tax for the year 2003” on October 1, 2003 to the Plaintiff.

1. Basic facts

(a) Details of the disposition;

(1) On April 24, 2003, with respect to the apartment of this case owned by the Plaintiff, the registration of ownership transfer was made on the ground of donation under the name of the Plaintiff, ASEAN.

(2) At the time of the registration of transfer of ownership, the Plaintiff owned the shares of 000 OO-dong, Gangnam-gu Seoul Metropolitan Government OOOO-dong 467 OOOO-dong 000 000 dong and April 18, 2003 other than the apartment of this case at the time of the registration of transfer of ownership.

(3) On May 2003, the Plaintiff reported to the Defendant on the standard of capital gains tax regarding the transfer of the instant apartment, and reported and paid KRW 000 million for the portion exceeding KRW 600 million, which is the standard amount of expensive house, on the ground that as of March 13, 2003, the Plaintiff’s transfer of the instant apartment, as of March 13, 2003, constitutes a transfer of one house for one household, the donor and the donee, with respect to the secured debt (three loans) of the right to collateral security established on the instant apartment.

(4) However, on April 24, 2003, the Defendant issued the instant disposition imposing capital gains tax of KRW 000 on the Plaintiff on October 1, 2003, on the ground that the Plaintiff held each of the above OO 000 dong 000 and OO 00 - 1/2 shares, and that the application of one house non-taxation provision for one household is excluded, and that it additionally imposes capital gains tax on the Plaintiff on October 1, 2003.

(b) Litigation history;

(1) The Plaintiff filed a national tax judgment with the National Tax Tribunal on the instant disposition, and the National Tax Tribunal dismissed the Plaintiff’s claim on June 16, 2004, and the Plaintiff was notified of the decision of dismissal at that time.

(2) After that, the Plaintiff filed a lawsuit against the Defendant seeking the revocation of the instant disposition with the court 2004Gudan7002, and this court rendered a judgment dismissing the Plaintiff’s claim on June 1, 2005. Although the Plaintiff appealed (Seoul High Court 2005Nu14419), the Plaintiff was sentenced to the dismissal of appeal on February 15, 2006, and the Plaintiff appealed (Supreme Court 2006Du5441), but on May 25, 2006, the judgment of the first instance became final and conclusive.

(3) On December 22, 2006, the Plaintiff filed an objection against the Defendant on the ground that the Defendant did not comply with the notification procedure under Article 91 of the Property Tax Management Regulations, and the above objection was dismissed on January 8, 2007 on the ground that the request period was elapsed, and on March 23, 2007, the request for examination was filed with the Commissioner of the National Tax Service on May 7, 2007, respectively.

(4) Even before the filing of the instant lawsuit, the Plaintiff filed a lawsuit with the purport of the claim similar to the purport of the instant lawsuit (hereinafter referred to as “the previous lawsuit”) several times, which became final and conclusive upon rejection of the judgment, and the decisions are as follows.

(1) Seoul Administrative Court Decision 2008Gudan1705 decided Nov. 13, 2008

(2) Seoul Administrative Court Decision 2009Gudan14364 decided January 20, 2010

(3) Seoul Administrative Court Decision 2010Gudan1951 decided April 28, 2010

(4) Seoul Administrative Court Decision 2010Gudan8907 decided September 29, 2010

(5) Seoul Administrative Court Decision 2010Gudan23807 decided May 24, 2011

(6) Seoul Administrative Court Decision 2010Gudan25964 decided May 25, 2011

(7) Seoul Administrative Court Decision 2011Gudan14688 decided September 28, 2011

(8) Seoul Administrative Court Decision 2011Gudan14695 decided November 1, 2011

[Ground of Recognition] The non-contentious facts, Gap evidence 3 to 7, and Eul evidence 1 to 7 (including each number), and the whole purport of the pleading

2. Whether the lawsuit of this case is lawful

A. The Plaintiff’s primary claim and preliminary claim are both procedural unlawful grounds (non-compliance with the notification procedure prior to the notification procedure), or are related to substantive illegal grounds (the grounds for the time of transfer of the apartment of this case) and are merely an attack and defense method as to the illegality of the disposition of this case. Thus, the Plaintiff’s primary claim and preliminary claim are all lawsuits seeking revocation of the disposition of this case.

B. Meanwhile, a lawsuit seeking revocation of a disposition of national taxes, such as income tax, can not be instituted without a request for examination or adjudgment under the Framework Act on National Taxes and a decision thereon must be filed within 90 days from the date the decision on the request for examination or adjudgment was notified (Article 56(2) and (3) of the Framework Act on National Taxes). On the other hand, a judgment in a lawsuit is res judicata effect in respect of the defects in the requirements for a lawsuit established in that judgment (see, e.g., Supreme Court Decision 96Da31406, Nov. 15, 1996), and a lawsuit brought in violation of this provision cannot be dismissed due to illegality

C. As seen in the instant case, as seen earlier, the Plaintiff was notified of the decision to dismiss the national tax appeal against the disposition of the instant case on or around June 16, 2004, and the instant lawsuit is apparent in the record that it was filed on October 21, 201, which was 90 days after the lapse of 90 days thereafter, and the instant lawsuit is inappropriate in this regard, as well as inappropriate in this regard, and the Plaintiff filed several lawsuits with the court as stated in the same purport of the instant lawsuit, and was dismissed and finalized on the ground that the previous lawsuit of the instant case was unlawful because it did not go through the procedure for the previous trial, and thus, the lawsuit of the instant case conflicts with the res judicata effect, and it also is unlawful in this regard.

3. Conclusion

If so, the lawsuit in this case (including both the lawsuit on the main claim and the conjunctive claim) is unlawful, so it is decided to dismiss it, and it is so decided as per Disposition.