[소득세부과처분취소][공1986.6.1.(777),768]
In the case of a request for examination under Article 43 of the Board of Audit and Inspection Act, whether the exclusion period is observed ex officio.
Whether the pre-trial procedure, which is the premise of administrative litigation, has been lawfully completed, is a litigation requirement to be investigated by the court ex officio, notwithstanding whether the parties have asserted, and where a person subject to an internal tax imposition disposition files a request for examination under Article 43 of the Board of Audit and Inspection Act,
Article 43 of the Board of Audit and Inspection Act, Article 26 of the Administrative Litigation Act
[Defendant-Appellee] Plaintiff 1 and 3 others
The Head of the Maternization Tax Office
Seoul High Court Decision 85Gu335 delivered on December 10, 1985
The judgment below is reversed, and the case is remanded to Seoul High Court.
We examine the grounds of appeal.
In a case where a person who received a disposition of imposition of an internal tax such as global income tax and defense tax in this case is dissatisfied with it, the court below rejected the request for examination pursuant to Article 43 of the Board of Audit and Inspection Act within 60 days from the date of receipt of notice of such disposition. According to the purport of the statement of evidence Nos. 1 and 2 as well as the whole purport of pleading, the plaintiff can recognize the fact that the plaintiff received notice of the disposition of this case on Sep. 17, 1984 and filed the request for examination only on Nov. 17, 1984, 60 days after the above request for examination. Thus, the plaintiff's lawsuit of this case, which was based on the above request for examination, was illegal
In light of the records, Gap evidence No. 1 and evidence No. 2 cited by the court below stated that the date on which the plaintiff received the notice of the taxation disposition of this case as of September 17, 1984 as of the court below's approval. However, as the plaintiff's request for review was lawful within 60 days, the court should have determined the legitimacy of the lawsuit of this case, not only based on the statement of the court below, but also on the date on which the notification date of the taxation disposition of this case was received and the date on which the notification date stated in Gap evidence Nos. 1 and 2 was confirmed by the court below. The court below should have determined the legitimacy of the lawsuit of this case ex officio after examining whether it was correct. According to the records, according to the records, it is objectively apparent that the plaintiff was notified of the taxation disposition of this case as of September 17, 1984 but also on September 19, 1984 as of the date of the court below's approval. The plaintiff's request for review was legitimate within 60 days.
Therefore, the judgment of the court below is reversed, and the case is remanded to the court for a new trial and determination. It is so decided as per Disposition with the assent of all participating judges.
Justices Yoon Il-young (Presiding Justice) Gangwon-young Kim Young-ju