[양도소득세등부과처분취소][공2005.4.1.(223),515]
[1] The scope of the decision of correction, etc. that can be a follow-up measure according to the judgment after the period of exclusion from taxation pursuant to Article 26-2 (2) of the former Framework Act on National Taxes, and whether the above judgment includes a judgment dismissing or rejecting the plaintiff's claim (negative)
[2] Eligibility for defendant in an appeal seeking revocation of disposition of resident tax to be imposed on income tax
[1] According to the language and text of Article 26-2 (2) of the former Framework Act on National Taxes (amended by Act No. 4177 of Dec. 30, 1989), a person who is subject to taxation can only make a decision of correction or a disposition incidental thereto according to the relevant decision, etc., and does not make a new decision or a decision of increase that does not comply with the judgment, etc., within one year from the date the judgment, etc. becomes final and conclusive. In addition, the term "decision" under the above provision of the Act refers to a judgment that must not make a decision of correction or any other necessary disposition, i.e., a decision of cancellation on the disposition of tax imposition or the disposition of refusal of correction, and the judgment or the decision of rejection of the plaintiff
[2] According to Article 177-4 of the Local Tax Act, the defendant of an appeal suit seeking revocation of the disposition of imposition of the resident tax subject to income tax shall be the head of a Si/Gun having jurisdiction over the place of payment of income tax, and a lawsuit seeking revocation of the disposition of imposition of resident tax against the head of a tax office
[1] Article 26-2 (1) and (2) of the former Framework Act on National Taxes (amended by Act No. 4177 of Dec. 30, 1989) / [2] Article 177-4 of the Local Tax Act
[1] Supreme Court Decision 94Da3667 delivered on August 26, 1994 (Gong1994Ha, 2520), Supreme Court Decision 93Nu4885 delivered on May 10, 1996 (Gong1996Ha, 1897), Supreme Court Decision 96Nu68 delivered on September 24, 1996 (Gong1996Ha, 3240), Supreme Court Decision 200Du6657 delivered on September 24, 2002 (Gong2002Ha, 2601), Supreme Court Decision 2003Du1752 delivered on June 10, 2004 (Gong204, 1177)
[Defendant-Appellant]
Samsung Head of Samsung Tax Office
Seoul High Court Decision 2003Nu18707 delivered on September 15, 2004
The part of the judgment of the court below against the defendant regarding the disposition of imposition of resident tax shall be reversed, and the judgment of the court of first instance shall be revoked, and the plaintiff's lawsuit shall be dismissed. The defendant's remaining appeal shall be dismissed. All costs of appeal concerning the above dismissal shall be borne by the
1. According to Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 4177 of Dec. 30, 1989), income tax, defense tax, etc. cannot be imposed five years after the date on which the tax can be imposed. Article 26-2(2) of the same Act provides that where a lawsuit is instituted pursuant to the Administrative Litigation Act, a decision of correction or other necessary disposition may be made within one year after the date on which the judgment becomes final and conclusive, notwithstanding the provisions of paragraph (1) of the same Article, until one year after the date on which the judgment becomes final and conclusive. When the period of exclusion of taxation under paragraph (1) of the same Article expires, a taxation authority cannot issue a new decision of correction or other necessary disposition, such as a decision of correction, as well as a decision of correction, which makes it impossible for the taxation authority to issue an administrative litigation against the taxation disposition for a long time and the judgment etc. takes place after the expiration of the period of exclusion of taxation, it shall be deemed that paragraph (2) of the same Article 96.
According to the reasoning of the judgment below, the court below acknowledged facts as stated in its holding, and found that the "necessary disposition in accordance with the judgment, etc." under the above provision of the Act refers to the extent that the disposition can be corrected in accordance with the changed contents of the disposition, or the disposition is revoked merely due to a mere illegal cause in the process, and it can only be corrected to correct the defect and make the same disposition possible, and even if the grounds for increase in the tax base have been discovered during the process of litigation, as long as the exclusion period of the imposition right has already expired, a new disposition or an increase in the tax base may not be conducted, unlike the contents of the judgment, as long as the exclusion period of the imposition right has already expired. Thus, the disposition of capital gains tax and the defense tax in this case does not constitute "a necessary disposition in accordance with the above provision of the Act because the amount of the original disposition increased
In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error of law such as misunderstanding of legal principles as to the special exclusion period at the time of litigation under Article 26-2 (2) of the former Framework Act on National Taxes, and the defendant also issued the disposition of this case on December 10, 2001, which was within one year from the date on which the judgment of the Daejeon High Court 96Gu2680, which was brought by the plaintiff against the head of Daejeon District Tax Office, became final and conclusive on June 15, 2001. According to the reasoning of the judgment of the court below and records, the above final and conclusive judgment is dismissed, and it does not constitute "the decision of correction or other necessary disposition" under the above provision of the above Act, and therefore, it does not constitute "the decision of correction or other necessary disposition" under the above provision of the above Act. In this regard, there is no room for the above taxation
2. However, according to Article 177-4(1), (2), and (5) of the Local Tax Act (amended by Act No. 6060, Dec. 28, 1999), resident tax to be imposed is a local tax that must be paid to the head of a Si/Gun (the head of a Si/Gun in the case of the Special Metropolitan City/Metropolitan City/Metropolitan City; hereinafter the same shall apply) having jurisdiction over the place of payment of income tax. If the head of a tax office collects income tax by the method of imposition and notice of correction, determination, etc. under the Framework Act on National Taxes or the Income Tax Act, the resident tax to be imposed and collected at the same time shall be deemed to have been imposed and collected by the head of the Si/Gun. Thus, the defendant of an appeal litigation seeking revocation of the disposition of imposition of resident tax to be imposed on the Plaintiff shall be the head of Gangnam-gu Seoul Metropolitan Government, who is the head of the Gu having jurisdiction over the place of payment of income tax. Accordingly, the part seeking revocation of the disposition of imposition of income tax on the Plaintiff's tax claim.
3. Therefore, the part of the judgment of the court below against the defendant as to the disposition of imposition of resident tax is reversed, and it is deemed sufficient to judge this part in this court, and the judgment of the court of first instance is revoked, the plaintiff's lawsuit is dismissed, the defendant's remaining appeal is dismissed, and the costs of appeal as to the above dismissed part are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices
Justices Lee Han-gu (Presiding Justice)