[부동산투기억제세부과처분취소][판례집불게재]
Cho Yong-man (Attorneys Ha Jong-sung et al., Counsel for the plaintiff-appellant)
Head of Eastern Tax Office
October 18, 1972
The case shall be dismissed.
Litigation costs shall be borne by the plaintiff.
The imposition of real estate speculation tax of KRW 2,128,851 against the plaintiff on November 20, 1971 by the defendant shall be revoked. The costs of the lawsuit shall be borne by the defendant.
On the other hand, under Article 12 (2) of the National Tax Examination Request Act, an administrative litigation on the assessment and collection of national taxes shall be instituted within 30 days from the date of receipt of the decision on reexamination, notwithstanding the provisions of Article 5 of the Administrative Litigation Act: Provided, That if no notification of reexamination is made within the period as prescribed by Article 9 (2), the person shall file an action within 45 days from the date of receipt of the decision on reexamination. The decision under Article 9 (2) of the same Act shall be made within 45 days from the date of receipt of the decision and shall be notified immediately to the applicant, respectively. Thus, if the applicant for reexamination of national taxes fails to receive the notification of the decision within the above 45 days from the date of receipt of the request, the applicant for reexamination shall file an administrative litigation within 30 days from the date of the above 45 days after the date of receipt of the decision, and it is reasonable to interpret the right to bring an administrative litigation again within 30 days after the date of receipt of the decision.
In this case, according to the contents of Gap evidence No. 3 without dispute in its establishment, it is obvious that the plaintiff filed a request for reexamination against the disposition of this case on March 22, 1972. The plaintiff from May 6 to June 5 of the year after the 45 days pursuant to the provisions of Article 9 (2) of the National Tax Examination Request Act were passed pursuant to the provisions of Article 12 (2) of the same Act, and the plaintiff must file an administrative lawsuit against the plaintiff within 30 days pursuant to the provisions of the proviso of Article 12 (2) of the same Act. However, the plaintiff was notified of the decision as to the above reexamination and was served on June 6 of the year, and it is obvious that the lawsuit was filed again on July 3, 1972. This is unlawful after June 5, 1972, and it cannot be corrected. Thus, it is unnecessary to review the merits, and Article 184 of the Civil Procedure Act and Article 19 of the Administrative Litigation Act shall not be dismissed as to the cost of lawsuit.
November 8, 1972
Judges Lee Yong-su (Presiding Judge)