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(영문) 대법원 1982. 6. 22. 선고 81누358 판결
[영업세등부과처분취소][공1982.9.1.(687),702]
Main Issues

Whether the defect is cured if the decision on the merits is made without dismissal of the time limit or the request for a trial (negative)

Summary of Judgment

Even if the Director of the National Tax Tribunal did not dismiss an illegal request for adjudication which was filed after the lapse of the period of the request for adjudication and did not dismiss the request, such request for adjudication cannot be deemed to have gone through the pre-determination procedure, which is the premise of administrative litigation.

[Reference Provisions]

Articles 68 and 56 of the Framework Act on National Taxes

Reference Cases

Supreme Court Decision 74Nu214 Delivered on November 25, 1975

Plaintiff-Appellant

Attorney Kang Han-han et al., Counsel for the defendant-appellee

Defendant-Appellee

Head of Seodaemun Tax Office

Judgment of the lower court

Seoul High Court Decision 81Gu133 delivered on October 20, 1981

Text

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

Reasons

The grounds of appeal are examined.

The judgment of the court below is justified in finding that the plaintiff was notified of the imposition of 6,528,807 won on July 8, 1980 by the defendant, and the Commissioner of the National Tax Service rendered a decision to dismiss the request for examination on the imposition of 6,457,752 won among the September 5, 1980, and the plaintiff was notified of the determination on November 6 of that year, and the decision was made to the Director of the National Tax Tribunal. According to Articles 5(1), 5(2), 65(2), and 68(1) and (2) of the Framework Act on National Taxes, the decision of the court below was rejected by the Director of the National Tax Service within 60 days from the date of receipt of the decision within 60 days from the date of the request for examination, and if the plaintiff did not receive the notification of the decision within 60 days from the date of receipt of the decision, the decision of the court below cannot be deemed to have been rejected by the Director of the National Tax Service.

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

Justices Lee Chang-chul (Presiding Justice)

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