[유흥음식세부과처분취소][공1981.3.15.(652),13654]
(a) Non-Inclusion in the first day in calculating periods under Article 58 (2) of the Local Tax Act;
(b) The method of notifying extension of the prescribed period under the same Article;
1. The first day shall not be included in the calculation of the period for making a request for review under Article 58 (2) of the Local Tax Act in accordance with the method of calculating the period under the Civil Act;
2. The Minister of Home Affairs shall give notice of the decision to extend the review period under the above Article to the applicant for review in any way within the review period, so it is possible to have telephone conversations.
Articles 58 (2) and 59 of the Local Tax Act
Supreme Court Decision 79Nu22 Delivered on April 10, 1979
[Defendant-Appellee] Plaintiff 1 et al.
The head of Jongno-gu Seoul Metropolitan Government
Seoul High Court Decision 79Gu52 delivered on October 28, 1980
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal are examined.
1. In its reasoning, the court below rejected the plaintiff's request for re-assessment on August 19, 1978. The plaintiff filed a request for re-assessment on September 29 of the same year, and the plaintiff who received the request for re-determination on October 6 of the same year was 10.31 of the same year via the Seoul Special Metropolitan City Mayor, and the Minister of Home Affairs rendered a decision to dismiss the request as 12.28 of the same year. The Minister of Home Affairs can recognize that he sent the notice of postponement of decision period to the plaintiff as 1.30th of the same year before the decision was made, and the Minister of Home Affairs, pursuant to Article 58 (5) of the Local Tax Act, should have made a decision on the request for re-determination from October 31, 1978 to 30 days after the date on which the request for re-determination was received, and therefore, the plaintiff did not file a lawsuit within the period of 30 days after the dismissal of the request.
2. According to Article 59 of the Local Tax Act, calculation of the period prescribed by this Act or Municipal Ordinance based on this Act shall be governed by the Civil Act, and the calculation of the period shall not be based on the first day (see Article 157 of the Civil Act). As seen above, if the date of receiving a written request for examination (see Article 46-2 (2) of the Enforcement Decree of the Local Tax Act) by the Minister of Home Affairs is October 31, 1978, 30 days, which are the review period of the Minister of Home Affairs pursuant to Article 38 and Article 5 of the Local Tax Act, are expired as of November 30, 1978. Thus, the court below's decision that the review period of the Minister of Home Affairs had been extended until November 29, 1978, which is within the review period of the Ministry of Home Affairs, shall not be deemed unlawful. In addition, it shall be deemed that the court below's decision that the review period had been extended within 197 days after the date of review, which is 197 days.
Therefore, the judgment of the court below is reversed by the assent of all participating Justices.
Justices Jeong Tae-won (Presiding Justice)