Whether it is possible to contest the illegality of the initial taxation disposition in the litigation procedure for the rectification of the increased tax disposition, which was conducted after the determination of the taxation disposition (affirmative)

In cases where the taxation authority has issued a disposition to increase or correct a taxation, the first taxation disposition shall lose its independent value by absorbing it as a part of the subsequent revised disposition, and shall be subject to litigation; and in cases where the first taxation disposition was made after the lapse of the objection period or the completion of the previous trial procedure, the parties concerned may contest whether the initial taxation disposition was unlawful with respect to the tax base and amount determined by the first taxation disposition, which was determined in the litigation procedure on the revised disposition, and if it is unlawful after the trial and determination, the court shall revoke it.

Article 19 of the Administrative Litigation Act

Supreme Court Decision 85Nu599 decided Dec. 22, 1987 (Gong1988,353) 86Nu617 decided Feb. 9, 1988 (Gong1988,522) 90Nu219 decided Apr. 10, 1990 (Gong1990,1083)

Plaintiff

Head of the Pakistan Tax Office

Supreme Court Decision 89Nu7832 delivered on April 24, 1990

Seoul High Court Decision 90Gu8017 delivered on December 18, 1990

The appeal is dismissed.

The costs of appeal shall be assessed against the defendant.

(1) In a case where the taxation authority finds an error or omission in the tax base and amount of tax after the taxation was conducted, and made a correction thereof, the tax base and amount of tax previously increased shall be included in the initial tax base and amount of tax if the correction was made again. Thus, the first taxation disposition shall lose independent value as a part of the subsequent correction disposition, and only the correction disposition shall be subject to litigation. In a case where the first taxation disposition was made after the lapse of the objection period or the completion of the previous trial procedure, the parties concerned may contest whether the initial tax base and amount of tax determined by the first taxation disposition, which were determined in the litigation procedure on the correction disposition, were unlawful, and the court shall also cancel it if it was unlawful (see, e.g., Supreme Court Decisions 86Nu617, Feb. 9, 198; 85Nu599, Dec. 22, 1987).

According to the records, on December 31, 1987, on the ground that the registration of the Plaintiff’s title to the real estate of this case constitutes a case where the actual owner and the nominal owner are different, the Defendant: (a) calculated the donation amount at the time of donation; and (b) issued a disposition of imposition; (c) calculated the donation amount at the time of donation; (d) calculated the donation amount at the time of imposition on March 16, 1988; and (e) made a disposition of correction to increase the tax base and tax amount after re-calculated the donation amount at the time of imposition; (e) therefore, the lower court’s disposition of correction as of March 1

In such a case, we cannot accept the judgment of the court below on the ground of the dissenting opinion that only the increased portion becomes the object of litigation and that the illegality of the tax base and tax amount already finalized cannot be asserted.

(2) According to the reasoning of the judgment below, the court below recognized the fact that the registration of the real estate in this case in the name of the plaintiff was completed without communication or agreement between the non-party 1 who is the actual owner and the plaintiff, and rejected the evidence contrary thereto, and judged that the provision on the constructive gift under Article 32-2 (1) of the former Inheritance Tax Act cannot be applied. In comparison with the records, the judgment of the court below is justified and it is not erroneous in the incomplete hearing such as the theory of lawsuit. The arguments are groundless.

For the same reasons, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-Ba (Presiding Justice)