Seoul Administrative Court 2012Nu22579 (201 March 01, 2013)

Whether grounds for retrial under Article 451(1)6 of the Civil Procedure Act exist

A lawsuit for a retrial on a final judgment of an administrative case may be brought only when there exist grounds prescribed in the subparagraphs of Article 451(1) of the Civil Procedure Act which are applicable mutatis mutandis by Article 8(2) of the Administrative Litigation Act, and where the parties concerned have asserted the grounds by an appeal or have not claimed it with knowledge thereof, a lawsuit

Article 451 of the Civil Procedure Act: Grounds for Retrial

2013Nu315 Revocation of Disposition of Imposing capital gains tax, etc.

South AustriaA

BB Director of the Tax Office

Seoul Administrative Court Decision 2011Gudan30154 decided June 26, 2012

Seoul High Court Decision 2012Nu22579 Decided May 1, 2013

2014.23

208.27

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, respectively. The imposition of additional tax on capital gains tax for the year 2007, October 1, 2010 and the capital gains tax for the year 2007, shall be revoked. The defendant (hereinafter referred to as "the defendant for a retrial") shall pay OOOOO to the plaintiff (the plaintiff for a retrial; hereinafter referred to as "the plaintiff"). The defendant shall pay the plaintiff the capital gains tax for the year 2007, and the reasons therefor.

1. Determination of the judgment subject to retrial;

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

"A. On June 27, 2001, the Plaintiff acquired and held OO-si O-si O-si 526-9, 573 square meters (hereinafter "the instant land") as a gift. On September 27, 2007, the Plaintiff transferred the instant land on September 27, 2007, and filed a transfer income tax base return using OO-O and acquisition value as OO-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O, but on October 1, 2010, the Defendant re-calculated the transfer value of the instant land as O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O.

C. On November 8, 2012, the Plaintiff appealed with Seoul High Court 2012NuOOO, and the Defendant reduced part of the initial disposition of this case by including some necessary expenses, and imposed additional tax (OOO and additional tax for unfaithful payment) again on December 1, 2012 by stating the type, basis for calculation, etc. of additional tax in a tax payment notice. Accordingly, the Plaintiff’s appeal was dismissed on October 1, 2010 as the Plaintiff’s final judgment dismissing the Plaintiff’s appeal that constitutes the judgment subject to a retrial by 30O1,00,000,000 won of the principal tax as of October 1, 2010 and the additional tax as of December 1, 2012 (hereinafter referred to as “the disposition in this case, including the principal tax and the additional tax”).

A. The plaintiff's assertion

Since the Plaintiff was not paid KRW OO of the purchase price from BB Construction Co., Ltd., the purchaser of the instant land, the portion exceeding the reasonable tax amount should be revoked. However, the instant judgment subject to a retrial was erroneous by mistake or omission of judgment as to the date of return of the Plaintiff, whether the Plaintiff directly cultivated the instant land, whether the Plaintiff asserted that he cultivated the instant land, whether the Plaintiff changed the purport of the claim in the appellate trial, whether the Plaintiff could receive the purchase price, and whether the Plaintiff could receive the purchase price. Therefore, there exists a ground for retrial in the instant judgment subject to a retrial. In addition, the Defendant should pay the Plaintiff the total capital gains tax overpaid and erroneously paid to the Plaintiff

B. Determination

1) A lawsuit for retrial against a final judgment of an administrative case may be brought only when there are grounds prescribed in each subparagraph of Article 451(1) of the Civil Procedure Act, which shall apply mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, and a lawsuit for retrial may not be brought unless the parties have asserted the grounds by appeal or have known them.

2) As long as the Plaintiff filed a final appeal with the Supreme Court, on May 6, 2013, on the grounds that the original copy of the instant judgment subject to a retrial was served, it is reasonable to deem that the Plaintiff had been aware that there had already been grounds for a retrial of omission of judgment at that time. Therefore, regardless of whether the Plaintiff asserted such grounds in the final appeal, the Plaintiff cannot be deemed grounds for a retrial that omission in the judgment

Other grounds that the Plaintiff is resistant are not a legitimate ground for retrial under each subparagraph of Article 451(1) of the Civil Procedure Act, or fall under the case where the Plaintiff alleged or did not know that it was a legitimate ground for retrial under each subparagraph of Article 451(1) of the said Civil Procedure Act. In addition, the Plaintiff’s claim for payment of a new amount against the Defendant cannot be filed as a lawsuit for retrial. Accordingly, all of the grounds for retrial

3. Conclusion

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