[취득세등부과처분취소][공2001.11.1.(141),2283]
In order to file a lawsuit seeking revocation of imposition under the Local Tax Act with respect to a decision of unconstitutionality as to Article 78 (2) of the Local Tax Act (negative), and the period for filing a lawsuit seeking revocation without filing a lawsuit seeking a voluntary objection (negative), and the period for filing a lawsuit seeking revocation.
Article 78(2) of the Local Tax Act (amended by Act No. 5406, Aug. 30, 1997) declares that it violates the Constitution, as the Constitutional Court Decision 2000Hun-Ba30, Jun. 28, 2001, the provision becomes null and void. However, the remaining provisions of Article 72(1) of the Local Tax Act excluding Article 78(2) of the Local Tax Act (amended by Act No. 5406, Aug. 30, 1997), Article 74(1) of the former Local Tax Act (amended by Act No. 5615, Dec. 31, 1998), and Articles 18(1) and 20(1) of the Administrative Litigation Act excluding the above provisions 9 of the Local Tax Act, a request for examination against a taxpayer for an objection under the Local Tax Act can only be rejected by a voluntary filing of an objection under the premise that the request for examination should be revoked within the period prescribed by the Local Tax Act.
Article 74(1) of the former Local Tax Act (Amended by Act No. 5615, Dec. 31, 1998); Articles 72(1) and 78(2) of the Local Tax Act (Amended by Act No. 5406, Aug. 30, 1997); Articles 18 and 20(1) of the Administrative Litigation Act
Constitutional Court Decision 2000Hun-Ba30 decided Jun. 28, 200 (Hun-Ba58, 69)
Hyundai U.S. (Attorney Cho Jong-sung et al., Counsel for the defendant-appellant)
The head of Gyeyang-si (Attorney Kim Tae-tae, Counsel for the defendant-appellant)
Seoul High Court Decision 99Nu10249 delivered on March 23, 2000
The judgment below is reversed and the case is remanded to Seoul High Court.
1. According to the reasoning of the judgment below, the court below acknowledged that the plaintiff was notified of the disposition imposing acquisition tax and special rural development tax of March 13, 1998 (hereinafter "the disposition of this case") and received notification of the decision on the objection on July 4 of the same year from the defendant on May 6 of the same year, and immediately filed the lawsuit of this case on August 25 of the same year, and thereafter received notification of the decision on the request for review on September 21 of the same year, and received notification of the decision on the request for review on November 5 of the same year. The above request for review was dismissed as it did not meet the request period under Article 74 (1) of the former Local Tax Act (amended by Act No. 5615 of December 31, 1998, hereinafter the same) since it did not meet the request period under Article 74 (1) of the former Local Tax Act (amended by Act No. 5615 of Aug. 30, 1997, hereinafter the same).
2. Article 72 (1) of the Local Tax Act provides that a person whose rights or interests have been infringed due to an illegal or unreasonable disposition under this Act or an absence of a necessary disposition may file an objection or a request for examination under the provisions of this Section. Article 74 (1) of the former Local Tax Act provides that a request for examination shall be made to the Minister of Home Affairs with respect to a decision of the Governor within 60 days from the date of receipt of notification of the decision of the request for examination, and to the Governor or the Minister of Home Affairs with respect to the decision of the head of Si/Gun, respectively. Article 78 (2) of the Local Tax Act provides that an administrative litigation against an unlawful disposition under Article 72 (1) of the Administrative Litigation Act shall not be filed without going through a request for examination and the decision thereof notwithstanding the provisions of the main sentence of Article 18 (1), (2) and (3) of the Local Tax Act. Article 18 (1) of the Administrative Litigation Act provides that an administrative agency may file an appeal against the relevant disposition without filing an original request for administrative adjudication under other Acts and subordinate statutes.
However, the Constitutional Court Decision 200Hun-Ba30 delivered on June 28, 2001, which held the case in question, declared that Article 78(2) of the Local Tax Act is unconstitutional. According to the remaining provisions except Article 78(2) of the Local Tax Act, a disposition under the Local Tax Act may be filed, but a request for examination shall be made within the prescribed period from the date of receipt of notice of the decision through the request for examination. However, in order to file a request for examination, a request for cancellation of the disposition under the Local Tax Act may be filed without going through the request for examination under the Local Tax Act and without going through the request for examination under the proviso of Article 18(1) of the Local Tax Act. On the other hand, in the past, the period for filing a request for examination under the Local Tax Act can only be seen as having been filed without going through the request for examination under the premise that a taxpayer may voluntarily file an objection under the premise that the request for examination under the Local Tax Act can only be filed after the request for examination, and it can only be interpreted as having gone through the above and the request for cancellation.
In addition to this case, the plaintiff filed an objection against the disposition of this case within 90 days from the date of receiving notice of the decision, which is stipulated in Article 20 (1) of the Administrative Litigation Act, and the lawsuit of this case is legitimate.
Nevertheless, the court below rejected the lawsuit of this case by determining it as unlawful. Thus, the court below erred by misapprehending the legal principles on whether the lawsuit of this case is unconstitutional under Article 78 (2) of the Local Tax Act and the requirements for filing a lawsuit under the Local Tax Act and the Administrative Litigation Act
The grounds of appeal pointing this out are with merit.
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Jae-sik (Presiding Justice)