When a judgment dismissing a claim for cancellation of a taxation disposition becomes final and conclusive, res judicata has become effective, and thereafter, the plaintiff cannot seek confirmation of nullity by nullifying it.

The res judicata effect of a final and conclusive judgment dismissed in a lawsuit seeking a invalidity confirmation of the said taxation disposition, and in a case where the final and conclusive judgment dismissing the claim for invalidity confirmation of the said taxation disposition becomes final and conclusive, it cannot be asserted the invalidity of the said taxation disposition on the grounds before the closure of arguments at the fact-finding court, and

Article 3 (Liability for Inheritance Tax Payment)

2018-Gu Partnership-63694 Action to nullify the invalidity of the disposition of imposition of inheritance tax

AAA and 2

O Head of tax office

November 29, 2018

.01.10

1. Of the instant lawsuit against Defendant ○○ Tax Office, the part of the Plaintiffs’ claim for the invalidation of the attachment disposition on real estate No. 1 as indicated in the Plaintiffs’ Attachment 1 List, Plaintiff LL and WW 2. Claim for the invalidity of the attachment disposition on the claims and the Plaintiffs’ lawsuit against the Defendant Republic of Korea are dismissed.

2. The remainder of the plaintiff SS's claim against the defendant ○○ Director is dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

In the meantime, it is confirmed that the attachment disposition on September 26, 201 by the head of the tax office of defendant ○○ on the 1st attached list No. 1 (hereinafter referred to as the " attachment disposition") against the real estate on September 26, 201 and the attachment disposition on the 2th attached list No. 1 on June 20, 2014 (hereinafter referred to as "Attachment No. 2") against the claims on June 20, 201 are invalid respectively. In addition, it is confirmed that there is no inheritance tax to be paid by the plaintiffs to the defendant Republic of Korea jointly with

1. Details of the disposition;

A. The deceased ○○○○○ (hereinafter “the deceased”) was the owner of the real estate listed in the [Attachment 2 (hereinafter “each of the instant real estate”). On April 26, 2008, the sales contract was concluded with △△△ and △△△△△△ to sell each of the instant real estate and the instant land for KRW 3.2 billion (hereinafter “the instant sales contract”). However, the said sales contract was rescinded due to the buyer’s failure to pay the purchase price.

B. On June 21, 2008, the Deceased died, and his heir is his child, the JJ and the Plaintiffs. The JJ assessed the market price of each of the instant real estate at KRW 3.2 billion, and reported inheritance tax on December 22, 2008.

C. Defendant ○○ Tax Office terminated the instant sales contract, and the sales price cannot be deemed as reflecting the adequate market price of each of the instant real estate. On December 3, 2010, Defendant 25,602,64,000 won (land size per * *, ****) assessed as the officially announced value according to the supplementary assessment method under the former Inheritance Tax and Gift Tax Act (amended by Act No. 8863, Feb. 29, 2008; hereinafter the same shall apply) and then assessed as the market price of each of the instant real estate as the officially announced value, and then notified the Plaintiffs and JJ as follows *, *,**** (hereinafter referred to as the “instant taxation”).

D. On January 26, 2012, the Plaintiffs and the JJ filed a lawsuit seeking revocation of an inheritance tax imposition disposition by the court 2012Guhap○○○ on the ground that the above inheritance amount was excessive, but the Plaintiffs and the JJ appealeded on May 1, 2013, but the appeal was dismissed on April 16, 2014 (Seoul High Court 2013Nu○○○), while the Plaintiffs and the JJJ appealeded on the grounds that the appeal was dismissed on July 18, 2017 (Supreme Court 2014Du○○○) (hereinafter “instant prior lawsuit”).

E. On September 26, 2011, based on the instant taxation disposition, the head of the tax office, on September 26, 201, imposed the first attachment disposition on the Plaintiff’s real estate owned by the Plaintiff SS, and on June 20, 2014, the second attachment disposition on the Plaintiff’s claim of the Plaintiff SS was issued (hereinafter “instant attachment disposition”).

Facts without any dispute, Gap's evidence 1 through 6, Gap's evidence 8 through 13, 15, 16, 17, Eul's evidence 1 (including branch numbers; hereinafter the same shall apply), and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

After the death of the deceased, both the plaintiffs and the JJ have owned the inherited property including each of the instant real property solely by the JJ, and the plaintiffs have agreed to divide the inherited property (hereinafter referred to as the "instant division agreement") with the content of the waiver of the inherited property. On December 22, 2008, the JJ reported and paid inheritance tax on the premise that they have succeeded to the entire property of the deceased on December 3, 2010. Nevertheless, on the premise that on December 3, 2010, the head of the JJ and the plaintiffs jointly inherited the property of the deceased according to their statutory shares, the head of the ○○ Tax Office notified both the JJ and the plaintiffs of the inheritance tax*,*,****, respectively.

In the taxation of this case, ① all of the inherited property following the death of the deceased was inherited by the JJ independently, and ② there is a defect in which the amount of tax to be individually paid to each co-inheritors is divided, specific, and not notified to each co-inheritors. Plaintiff SS is a person who is not an heir to whom inherited property from the beginning, and even if otherwise, there is no joint and several liability for inheritance tax within the scope of inherited property. Although there is no joint and several liability for inheritance tax, Defendant ○○ Tax Office did not recognize the division agreement of this case without any reasonable reason, and thus, Defendant ○○ Tax Office issued the disposition of this case based on the total amount of inheritance tax and additional tax. Such disposition of arrears is a disposition of arrears based on a tax claim based on the attachment disposition or joint and several tax liability for the property of a third party, not a taxpayer, and thus null and void.

B. Preliminary assertion

The main text of Article 3(1) of the former Inheritance Tax and Gift Tax Act provides that an inheritor is obligated to pay inheritance tax according to the ratio calculated as prescribed by the Presidential Decree based on the property received or to be received by each inheritor among inherited property under the former Inheritance Tax and Gift Tax Act, and Article 3(4) of the same Act provides that an inheritor shall be jointly and severally liable to pay inheritance tax within the limit of the property received or to be received by each inheritor or testamentary donee. However, since the instant division agreement was reached, the Plaintiffs do not have any property actually inherited, and there is no obligation to pay inheritance

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination prior to the merits

A. The defendants' assertion

1) Since the attachment registration was cancelled due to the cancellation of the first attachment disposition, the part of the plaintiffs' claim for confirmation of invalidity of the first attachment disposition against the defendant ○○ director of the tax office in this case is unlawful as there is no benefit of confirmation.

2) The Plaintiffs’ claim against Defendant Republic of Korea is unlawful against the res judicata effect of the preceding lawsuit.

B. Of the plaintiffs' claims against Defendant ○○ Head of the tax office, determination on the part of the claim for nullification of the first attachment disposition

1) In principle, a lawsuit for confirmation is permissible in order to eliminate risks or apprehensions in relation to the present rights or legal status. As to the past legal relations, it has an impact on the present rights or legal status, and it is recognized that obtaining a judgment on confirmation of the said legal relations is the most effective and appropriate means to eliminate risks or apprehensions in the present rights or legal status (see, e.g., Supreme Court Decision 2002Du1496, Nov. 26, 2002).

2) According to the statement in Eul evidence No. 1, it is recognized that the attachment disposition No. 1 was cancelled on September 12, 2017 and the registration of the attachment was cancelled on September 18, 2017. Therefore, the plaintiffs' claim for this part constitutes seeking confirmation of the past legal relationship, seeking confirmation of the invalidity of the attachment No. 1 that has already been rescinded. As long as the attachment No. 1 is rescinded, it is difficult to deem that the current plaintiffs' rights or legal status is affected. Therefore, it is difficult to recognize that there is a benefit of confirmation to seek confirmation of the invalidity of the attachment No. 1 that has been sought against the plaintiffs, and the part of the claim seeking confirmation of invalidity of the attachment No. 1 among the instant lawsuit is unlawful

C. Determination as to the claim for nullification of the second attachment disposition among the claim against the defendant ○○○ Tax Office of the plaintiff Jeong Jong-ri and Cho Jong-su

A third party, who is not the direct counter-party to an administrative disposition, is eligible to seek revocation of the administrative disposition only in cases where the right or the benefit protected by law is infringed by the pertinent disposition. The legal interest here refers to the direct and specific benefit protected by the law based on the relevant disposition. However, it does not include cases where it is merely an indirect or factual interest, such as an abstract, average, and general benefit common to the general public as a result of protecting the public interest (see, e.g., Supreme Court Decision 94Nu1454, Sept. 26, 1995).

The facts that the other party to the second attachment disposition is a plaintiff SS are as seen earlier. The plaintiff LL and WW cannot be directly the other party to the second attachment disposition, and the third party cannot be deemed to have been infringed upon the interests protected by law due to the second attachment disposition. Therefore, the plaintiff's standing to sue is not recognized. Accordingly, the claim seeking the invalidity of the second attachment disposition of the plaintiff LL and WW among the lawsuits in this case is unlawful.

D. Determination on the plaintiffs' claims against Defendant Republic of Korea

Article 216 and Article 218 of the Civil Procedure Act, which applies mutatis mutandis to an administrative litigation pursuant to Article 8(2) of the Administrative Litigation Act, does not allow a subsequent suit that is identical to the subject matter of a prior suit that has res judicata effect. In addition, even if the subject matter of a prior suit is not the same as the subject matter of a prior suit, if the judgment on the subject matter of a prior suit is prior to or contradictory to the judgment on the prior suit, the subsequent suit does not allow a claim different from the judgment on the prior suit (see Supreme Court Decision 2015Du48235, Mar. 24, 2016).

Under the premise that the inheritance tax imposition disposition against the Plaintiffs by Defendant ○○ Tax Office is null and void, the Plaintiffs seek confirmation of non-existence of the inheritance tax to be paid to the Defendant Republic of Korea jointly with the JJ. This ultimately seeks a judgment inconsistent with the final and conclusive judgment in the preceding lawsuit of this case where the instant tax disposition against the Plaintiffs by Defendant ○○ Tax Office is lawful, and thus, it cannot be allowed as it goes against the res judicata of the said final and conclusive judgment. Accordingly, the Plaintiffs’ claim against the Defendant Republic of

5. Determination as to the part of the claim for nullification of the second attachment disposition against the Defendant ○○○ Director of the Plaintiff SS

(a) Facts of recognition;

1) On September 26, 2008, Plaintiff LL LL, Plaintiff SSS, and W on October 9, 2008, when the Plaintiff renounced the inheritance of each of the instant real property and prepares a written agreement on division of property, Plaintiff LL prepared a power of delegation to delegate JJ as agent and signed it on the power of delegation (the Plaintiff is both U.S. citizens).

2) On October 10, 2008, the JJ’s sole possession of each of the instant real estate, and the Plaintiffs drafted an agreement on the division of inherited property (Evidence A No. 7-1, hereinafter “instant agreement”) as of October 10, 208, stating that they waive the deceased’s inheritance of property.

3) On December 22, 2008, J did not state that the instant written agreement was not attached at the time of filing a voluntary report on inheritance with the chief of Defendant ○○○ Tax Office, and that such agreement was made on the division of inherited property. Accordingly, Defendant ○○ Tax Office deemed that the JJ and the Plaintiffs inherited each of the instant real property according to their statutory shares in inheritance, and issued the instant tax disposition.

4) The plaintiffs and the JJ did not at all assert that the tax amount of the instant tax disposition was not borne by the heir, on the premise that the instant agreement on subdivision was duly formed, in the instant lawsuit that was conducted three years after the date of the establishment of the instant written agreement on subdivision, and that the Plaintiffs did not bear an obligation to pay inheritance tax, as they were not the heir.

5) On October 24, 2007, the Deceased filed a lawsuit seeking cancellation of the provisional registration against Cho○○, who had previously been owned by the Deceased, but lost on October 24, 2007, the first instance court (Seoul Central District Court 2006Gahap○○○○○), and died on June 21, 2008, when the appellate court (Seoul High Court 2007Na○○○○○) filed a complaint for cancellation of the provisional registration on the real estate held by the Deceased. The JJ submitted the written agreement of this case to the appellate court on October 14, 2008, and proceeded the said lawsuit by solely taking over the lawsuit of the Deceased (hereinafter referred to as “related first civil case”).

6) On July 14, 2010, △△△△△△△△, on the ground that the deceased is obligated to implement the procedures for the transfer of ownership of the deceased’s real estate to Kim △△△△△△△ and this △△△△△△△△△△△△△△△△△△△, the deceased inherited the deceased (Seoul East East East Eastern District Court 2010). On August 12, 2011, the above appeal was dismissed on September 25, 2013 (Seoul High Court 201Na○○○○○○○○), but the above appeal was dismissed on March 14, 201 by the first instance court, stating that △△△△△△△△△△△△ and this △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, which was named on March 14, 2014, respectively.

[Ground of recognition] Gap evidence Nos. 1, 7, Eul evidence Nos. 3, witness JJ's partial testimony, the purport of whole pleadings

B. Determination

1) In light of the following circumstances revealed by the above facts, evidence No. 7 and the testimony by the JJJ of the witnesses alone are insufficient to recognize that the Plaintiff’s SS is not the deceased’s heir due to a genuine sense of inheritance division agreement between the Plaintiffs and the JJ as to each of the instant real estate, and there is no other evidence to acknowledge it. Accordingly, the Plaintiff’s assertion that the second attachment disposition is subject to Plaintiff SS’s property, a third party without inheritance tax liability, and thus null and void is without merit.

① Although the Plaintiffs won the case in the first and second instances related to the second and second instances, the Supreme Court rendered a favorable judgment, despite the fact that the second and second instances were likely to have been reversed and remanded, the Supreme Court did not claim the division agreement in this case, and rather stated that the division agreement in this case was only prepared for the convenience of the first and second instances related to the first and second instances, and that the registration of ownership transfer based on the inheritance in the name of the Plaintiffs, which was completed on each real estate in this case, also recognized that the registration of ownership transfer based on the inheritance

② If the Plaintiffs asserted for the instant partition agreement at the time of the instant prior suit, the Plaintiffs were not obligated to pay inheritance tax, but did not assert the instant partition agreement.

③ The Plaintiffs asserted that they submitted the instant divisional agreement to ○○ Tax Office at the time the JJ reported the voluntary payment of inheritance tax, but are not able to submit the materials supporting their assertion. Meanwhile, in addition to the case for taking over the lawsuit for the first civil case, there is no evidence to prove that the Plaintiffs had expressed clearly the instant divisional agreement to the public agencies, including the tax authorities, by filing a lawsuit several times from October 10, 2008 to the instant case.

④ The Plaintiffs asserted that they were residing in a foreign country as U.S. citizens, and that they did not claim the division consultation of this case in addition to the case of the first citizen's death, since they had been entrusted to the JJ for a lawsuit related to inheritance due to the death of the deceased, they did not claim the division consultation of this case. However, the division consultation of this case is an important factor for the second citizen's death, the determination of the failure of the lawsuit in the lawsuit of this case, and the plaintiffs filed several lawsuits in relation to the property dispute arising from the death of the deceased. In light of the above, the above argument of the Plaintiffs is not persuasive.

2) Even if there was an agreement on the division of inherited property, such as the content of the instant written agreement on division as alleged by the Plaintiffs, in light of the following circumstances, it is difficult to recognize the attachment disposition as null and void.

① Under Article 3 of the former Inheritance Tax and Gift Tax Act, a person who renounces inheritance and a special relative are also included in an inheritor pursuant to Article 1019(1) of the Civil Act, and an inheritor or a testamentary donee is obligated to pay inheritance tax on the basis of an inherited property received or to be received by each person among inherited property. The inheritance tax sets the limits of liability of the inheritors so that the heir or testamentary donee is jointly liable to pay

② If there was an agreement on division only for a part of inherited property, the remaining inherited property shall be reverted to each heir according to the statutory inherited portion (Supreme Court Decision 94Nu12197 delivered on March 28, 1995). Even if the JJ reported and paid the inheritance tax under the sole name of the JJ around December 22, 2008 and attached the written agreement on division, it could be known that the head of Defendant ○○ Tax Office had investigated the taxable amount of inheritance taxes of each Plaintiffs by reporting the value of property donated to the deceased before the commencement of the inheritance. Accordingly, even if Plaintiff SS received or did not have any property by inheritance, the defect of the second disposition of seizure by Defendant ○○ Tax Office is evident solely on the fact that the written agreement on division was submitted to Defendant ○○ Tax Office.

③ In a lawsuit seeking revocation of a taxation disposition, the substantive and procedural illegality of the taxation disposition is the cause of revocation. The subject matter of the trial is the objective existence of the tax base and tax amount, which are the tax obligations recognized by the tax authority’s taxation disposition, i.e., the propriety of the taxation disposition concerned, and the validity of the judgment dismissing the claim for revocation of the taxation disposition becomes final and conclusive, and thus, the plaintiff cannot bring an action seeking nullification of the taxation disposition, and thus the res judicata effect of the final and conclusive judgment dismissed in the lawsuit seeking nullification of the taxation disposition is also effective (Supreme Court Decision 2002Du3669 Decided May 16, 2003). In a case where the judgment dismissing the claim for nullification of the taxation disposition becomes final and conclusive, the plaintiff’s assertion that the invalidation of the taxation disposition was null and void based on the grounds before the closure of the arguments at the fact-finding court, and thus, the plaintiff’s assertion that the prior taxation disposition was invalid or that the prior taxation disposition was not unlawful before the closing of argument in the lawsuit of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.