[1] In a case where there is an illegal ground for revocation of a taxation disposition, whether the validity of the taxation disposition can be denied in the civil procedure (negative)

[2] Whether a disposition imposing capital gains tax on a title trustee of real estate is void as a matter of course (negative)

[1] As long as a taxation disposition cannot be seen as null and void as it is, even if there are illegal grounds for revocation of the taxation disposition, such taxation disposition shall be valid until it is lawfully revoked by the fairness of the administrative act or its executory power. Therefore, the validity of the taxation disposition in the civil procedure cannot be denied.

[2] The imposition of capital gains tax on a title trustee, who is not a real owner of real estate, is illegal, but it cannot be deemed invalid because the defect is not so serious and clear that it can only be revoked.

[1] Articles 1 [General Administrative Disposition] and 19 of the Administrative Litigation Act / [2] Articles 1 [General Administrative Disposition] and 19 of the Administrative Litigation Act, Article 14 of the Framework Act on National Taxes

[1] Supreme Court Decision 87Da26690 decided Oct. 22, 1991 (Gong1991, 281), Supreme Court Decision 97Da26432 decided Oct. 10, 197 (Gong1997Ha, 3442), Supreme Court Decision 98Da703 decided Apr. 10, 198 (Gong198Sang, 1307), Supreme Court Decision 70Nu150 decided Feb. 23, 197; 97Nu13627 decided Nov. 28, 197 (Gong1968) / [2] Supreme Court Decision 98Da703 decided Apr. 10, 198 (Gong1998Sang, 1307)

Korea

Defendant (Attorney Lee Im-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 98Na44156 delivered on March 18, 1999

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, when the registration of ownership transfer was made in the name of Nonparty 1 in the name of Nonparty 1, the court below found that the Plaintiff imposed capital gains tax on the transfer of the real estate of this case on Nonparty 1. However, the real owner of the real estate of this case was Nonparty 2 and Nonparty 1, who managed the real estate of this case under title trust with Nonparty 1, and completed the registration of ownership transfer in the name of the company of this case. Under the principle of substantial taxation, the person liable to pay capital gains tax on the transfer of the real estate of this case is not Nonparty 1 but Nonparty 2, who is the title truster. Accordingly, the court below found that the disposition of imposition against Nonparty 1 was unlawful, and that the Plaintiff did not have any capital gains tax on Nonparty 1, and dismissed the lawsuit of this case seeking the cancellation of the above donation contract and the cancellation of the ownership transfer registration on the ground of the gift contract, on the premise that the real estate donation contract concluded between Nonparty 1 and the Defendant for the purpose of preserving the above transfer income tax claim.

2. As long as a taxation disposition cannot be viewed as null and void as a matter of course, even if there are illegal grounds for revocation of the taxation disposition, such taxation disposition shall be valid until it is lawfully revoked by the process of administrative act or the executory power (see, e.g., Supreme Court Decisions 87Meu54, Jul. 7, 1987; 91Da26690, Oct. 22, 191).

As determined by the court below, if the real estate in this case is owned by the non-party 2, and is held in title trust with the non-party 1, the disposition of imposition of the capital gains tax against the non-party 1 is unlawful, but it cannot be deemed null and void because its defect cannot be deemed to be serious and clear (see Supreme Court Decision 97Nu13627, Nov. 28, 1997). If the above disposition can only be revoked as above, it shall not be recognized that the above disposition can not be denied in civil procedure and the above transfer income tax claim is not nonexistent. Although the first instance court in the administrative litigation seeking the cancellation of the above disposition of capital gains tax, if the lawsuit is pending in the appellate court due to the plaintiff's appeal, if the disposition is not legally revoked and finalized, it shall not be deemed to be different.

Nevertheless, the court below's decision to dismiss the plaintiff's lawsuit of this case based on its own judgment that the plaintiff's disposition of imposition of capital gains tax against the non-party 1 did not exist because the plaintiff's disposition of imposition of capital gains tax against the non-party 1 did not affect the conclusion of the judgment. Thus, the ground of appeal

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hoon (Presiding Justice)