[영업세등부과처분취소][공1982.9.1.(687),702]
Whether the defect is cured if the decision on the merits is made without dismissal of the time limit or the request for a trial (negative)
Even if the Director of the National Tax Tribunal did not dismiss an illegal request for adjudication which was filed after the lapse of the period of the request for adjudication and did not dismiss the request, such request for adjudication cannot be deemed to have gone through the pre-determination procedure, which is the premise of administrative litigation.
Articles 68 and 56 of the Framework Act on National Taxes
Supreme Court Decision 74Nu214 Delivered on November 25, 1975
Attorney Kang Han-han et al., Counsel for the defendant-appellee
Head of Seodaemun Tax Office
Seoul High Court Decision 81Gu133 delivered on October 20, 1981
The appeal is dismissed.
The costs of appeal shall be borne by the plaintiff.
The grounds of appeal are examined.
The judgment of the court below is justified in finding that the plaintiff was notified of the imposition of 6,528,807 won on July 8, 1980 by the defendant, and the Commissioner of the National Tax Service rendered a decision to dismiss the request for examination on the imposition of 6,457,752 won among the September 5, 1980, and the plaintiff was notified of the determination on November 6 of that year, and the decision was made to the Director of the National Tax Tribunal. According to Articles 5(1), 5(2), 65(2), and 68(1) and (2) of the Framework Act on National Taxes, the decision of the court below was rejected by the Director of the National Tax Service within 60 days from the date of receipt of the decision within 60 days from the date of the request for examination, and if the plaintiff did not receive the notification of the decision within 60 days from the date of receipt of the decision, the decision of the court below cannot be deemed to have been rejected by the Director of the National Tax Service.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Chang-chul (Presiding Justice)