[2] The physical and human scope of a decision of correction, etc. that can be a follow-up measure according to the judgment and decision after the exclusion period of taxation pursuant to Article 26-2 (2) of the former Framework Act on National Taxes

[2] The special exclusion period stipulated in Article 26-2 (2) of the former Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993), which is a special provision on the exclusion period, is once the period of taxation exclusion expires, the taxation right holder cannot make a new decision or a new decision or a new decision or a decision of increase that does not comply with the relevant decision, etc., unless there are special circumstances such as succession of tax liability, and as a result, in a case where litigation procedures such as a request for administrative appeal or administrative litigation are delayed for a long period of time and the judgment, etc. are conducted after the exclusion period has expired, it is established in order to prevent an unreasonable case that makes it impossible to make a disposition in accordance with the judgment, etc., the taxation right holder can only make a decision or a disposition incidental thereto, and it does not affect the decision or decision of increase that does not have the effect as to the person liable for tax payment, and it does not affect the change of the judgment or decision of change.

According to the reasoning of the judgment below, on November 10, 1993, which was three days before the death of the non-party, whose father was the non-party, the plaintiff 2 received the real estate of this case from the non-party on November 10, 1993. The defendant considered it as an onerous donation and imposed gift tax on the above plaintiff. On the other hand, the debt of 443,647,629 won equivalent to that portion shall be considered as a onerous transfer from the deceased, and upon the deceased's heir including the plaintiffs on April 8, 199, the transfer income tax was imposed upon the deceased according to their respective inheritance possession ratio (hereinafter referred to as "original disposition"). On February 18, 2002, the above plaintiff 1.5 billion won should also be deducted from the gift tax amount of the non-party on the ground that the above plaintiff's claim against the gift tax imposition should also be deducted from the gift tax amount of the non-party 2, which was already extinguished on the ground that it should be deducted from the gift tax amount of this case 9.39.

2. Judgment of the Supreme Court

However, we cannot accept the judgment of the court below for the following reasons.

According to Article 26-2 (1) of the former Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993; hereinafter referred to as the "former Act"), income tax shall not be imposed after five years from the date on which the tax base and amount of national tax can be imposed, and where there is an objection, request for examination, request for examination under the Board of Audit and Inspection Act, or lawsuit under the Administrative Litigation Act, a decision of correction or other necessary disposition may be made within one year from the date on which the decision or decision becomes final and conclusive, and Article 12-3 (1) 1 of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 15968 of Dec. 31, 198) provides that the period of exclusion from taxation can not be applied to the subsequent decision of 9 years from the date on which the decision or decision of correction becomes final and conclusive, and that the period of exclusion from taxation cannot be applied to the subsequent decision of 9 years from the date on which the tax base and amount of national tax can be imposed.

According to the facts acknowledged by the court below, the transfer date of the real estate of this case (the gift by a charge) was on November 10, 1993, and the final return of transfer income tax was made on May 31, 1994, and the exclusion period was on May 31, 1999, when five years have passed since it was made on May 31, 199. Thus, it is apparent that the exclusion period had already been passed at the time when the Defendant issued a disposition of increase in transfer income tax. Therefore, the decision of the National Tax Tribunal, which was cited by the Defendant as the ground for the re-disposition, is null and void unless the special exclusion period is applied as it constitutes a re-disposition under the above Framework Act on National Taxes. This is only effective as to the disposition of increase in transfer income tax of this case brought by Plaintiff 2, and it cannot be deemed a legitimate re-disposition in accordance with the above decision of the court below. Accordingly, the above increase in disposition cannot be deemed as a legitimate re-disposition based on the above exclusion period and invalidation.

Nevertheless, the judgment of the court below, which judged that the initial disposition of this case was absorbed into the increased disposition, is erroneous in the misunderstanding of legal principles as to the exclusion period of imposition, which affected the conclusion of the judgment, and thus, the plaintiffs' ground of appeal disputing this point

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)