[과세처분취소][판례집불게재]
[Defendant-Appellee] The Head of Si/Gun/Gu
Head of Central Busan District Tax Office (Attorney Park Jong-ap et al., Counsel for defendant-appellant)
July 1, 1970
The proceedings shall be dismissed.
Litigation costs shall be borne by the plaintiff.
The disposition that the Defendant imposed KRW 1,156,138 on the Plaintiff as of April 26, 1969 (from February 1965 to February 1968) shall be revoked.
Litigation costs shall be borne by the defendant.
As of April 26, 1969, the fact that the Defendant rendered a taxation such as the statement in the purport of the claim against the Plaintiff, and the fact that the Plaintiff did not go through the appeal procedure pursuant to the National Tax Examination Request Act prior to the filing of the lawsuit on this issue was without dispute between the parties;
The defendant asserts that the lawsuit should be dismissed without going through the procedure of objection under the National Tax Examination Act. The plaintiff argues that this disposition is subject to the direction of the Board of Audit and Inspection by the Board of Audit and Inspection, so the procedure of objection prior to the filing of a lawsuit under Article 2 of the Administrative Litigation Act shall be subject to the request for examination under Article 43 of the Board of Audit and Inspection Act. The plaintiff is legitimate to file a request for examination under Article 43 of the Board of Audit and Inspection Act, since the plaintiff received a notice of dismissal decision on December 9, 1969 and received a request for a principal lawsuit. Even if it is not a house, the plaintiff can exercise the right of objection under the National Tax Examination and Inspection Act or the request for examination under the Board of Audit and Inspection Act with respect to the same disposition. Thus, the defendant's argument is without merit.
Article 43 of the Board of Audit and Inspection Act which was enacted by delegation of the Board of Audit and Inspection Act provides that a request for review may be made, regardless of whether or not the case has been filed in question. Article 7 of the same Rule provides that a request for review shall be made for a long period of one year from the date on which the period for filing a request for review has been caused. Article 13 of the former Board of Audit and Inspection Act provides that the ruling of a litigant shall bind the administrative agency which is subject to the disposition. Articles 4(1), 7, and 9 of the National Tax Examination Act provide that the disposition agency or the higher administrative agency may directly correct or cancel the administrative disposition which is the object of objection. However, Article 44 of the Board of Audit and Inspection Act provides that the disposition agency shall take proper measures upon the request for correction by the Board of Audit and Inspection. Article 43 of the above Board of Audit and Inspection Act provides that the interested person who is subject to the audit by the Board of Audit and Inspection shall be able to request correction as an exercise of the right to audit and inspection as its original duty.
If so, it is apparent that the plaintiff's claim of the principal lawsuit is not sufficient to meet the requirements for filing a lawsuit under Article 2 of the Administrative Litigation Act, so it is unnecessary to decide on the merits, and the costs of lawsuit are assessed against the losing party.
July 15, 1970
Judges Lee Jae-ho (Presiding Judge)