A. Whether a person jointly and severally responsible for tax payment, who has paid the tax, has a benefit to seek confirmation of invalidity of the disposition of notice of tax payment (negative)

B. Whether the taxpayer's right to claim a refund should be confirmed, even if the taxation disposition is revoked or its validity is inevitable (negative)

(c) Where a person liable to pay taxes can file a lawsuit claiming the revocation of taxation disposition even though he/she did not go through the preceding trial procedure;

D. In a case where a donee has gone through a prior trial procedure regarding a disposition imposing gift tax on the donor, whether a joint and several payment disposition on the donor should be subject to a prior trial procedure (affirmative)

E. Purport and application of Article 32-2(1) of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990)

A. Where a tax is already paid in accordance with a tax disposition, the tax obligation following the said disposition is extinguished and does not exist, and thus, the claim for nullification of the said disposition is unlawful as it does not have any interest in confirmation. Thus, even if a joint and several liability obligor of the tax has paid the tax, the obligor does not bear joint and several liability for the tax amount based on the current disposition of payment notice even if he/she paid the tax, and thus, the claim for nullification of the said disposition is unlawful as there is no interest in confirmation.

B. In a case where a taxation disposition is revoked or an erroneous payment is null and void, it constitutes unjust enrichment held by the State without any legal ground, and thus, the taxpayer is entitled to claim a refund, and the claim for refund is not finalized only when a refund decision is made pursuant to Article 51 of the Framework Act

C. Under Article 56(2) of the Framework Act on National Taxes, the application of Articles 18(2), 18(3), and 20 of the Administrative Litigation Act is excluded. However, in a case where two or more administrative dispositions are carried out in a series of development processes for the same purpose, which are carried out by the tax authorities for the same purpose, and where the tax disposition, which is the object of a lawsuit, has been modified by the tax authorities during the continuation of a tax lawsuit, is common in the grounds for illegality, or where multiple persons are subject to the same obligation by the same administrative disposition, one of the taxpayers who are either subject to a prior trial procedure or subject to the same obligation, may file a lawsuit seeking the revocation of a tax disposition, unless the taxpayer and the National Tax Tribunal have given an opportunity to reconsider the basic facts and legal issues by undergoing a legitimate prior trial procedure.

D. The taxation requirements for a joint obligor under Article 38 of the Enforcement Decree of the Inheritance Tax Act are separate from the taxation requirements for the gift tax on the donee. The disposition imposing the gift tax on the donee and the disposition imposing the tax on the joint obligor as the donor are common only in that the same gift is the taxation basis, and thus, it shall be deemed a separate disposition, and thus, it shall be subject to separate review procedures.

E. The legislative intent of Article 32-2(1) of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 1990) is to prevent the abuse of the title trust system as a means to avoid gift tax with respect to the property that requires the transfer or exercise of the right to transfer or exercise of the right. Thus, if the title of registration is not to avoid gift tax, but for the reason that the title of registration is different due to statutory restrictions or other similar inevitable circumstances, it shall not be deemed a gift.

(d) Article 29-2(2) of the Inheritance Tax Act, Article 38(1) of the Enforcement Decree of the same Act, Article 35 of the Administrative Litigation Act, Article 51 and Article 19(c) of the Framework Act on National Taxes (the Constitutional Court Order 90HunBa2, 92HunBa2, 92HunBa2, 92HunBa25 (combined)) and Article 32-2(1) of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 1990)

A. Supreme Court Decision 80Nu424 delivered on January 13, 1981 (Gong1981, 13597) 87Nu533 delivered on September 22, 1987 (Gong1987, 1665) 91Nu3840 delivered on September 10, 1991 (Gong1991, 2551) B. Supreme Court Decision 88Nu6436 delivered on June 15, 1989 (Gong1989, 1096) 88Nu610 delivered on February 13, 1990 (Gong190, 679) 91Da32053 delivered on March 31, 1992 (Gong1992, 406) 19Nu136399 delivered on September 13, 196 (Gong194, May 194, 196)

Plaintiff 1

Pacific Construction Co., Ltd., Ltd. and one other, Counsel for the defendant-appellant-appellee

The Director of the Pacific District Office

Seoul High Court Decision 91Gu768 delivered on February 13, 1992

Each appeal shall be dismissed.

The costs of appeal shall be assessed against each appellant.

1. We examine Plaintiff Pacific Construction Co., Ltd. (hereinafter “Plaintiff Company”)’s ground of appeal No. 1.

In cases where taxes are already paid according to the disposition of imposition of taxes, the tax obligations according to the disposition of imposition are nonexistent and nonexistent, and thus, the claim for nullification of the disposition of imposition is unlawful as there is no benefit of confirmation (see, e.g., Supreme Court Decision 74Nu159, Feb. 10, 1976; Supreme Court Decision 80Nu424, Jan. 13, 1981; Supreme Court Decision 87Nu533, Sept. 22, 1987).

As duly admitted by the court below, if the Plaintiff Company paid both the gift tax and defense tax to be paid by Plaintiff 1 as a person jointly responsible for payment, the Plaintiff Company stated that the Plaintiff Company paid the said tax on behalf of Plaintiff 1, such as the lawsuit, and even if it paid the said tax, the Plaintiff Company did not jointly and severally liable for the said tax pursuant to the instant disposition on the payment notice, and thus, the Plaintiff Company’s primary claim seeking confirmation of the invalidity of the instant disposition on the payment notice does not exist as there is no benefit of confirmation. The judgment of the court below to the same purport is just and there is no violation of law, such

The theory of lawsuit is an illegal disposition against the plaintiff company, a joint tax obligor, due to the cancellation of the original disposition against the plaintiff 1. Therefore, the plaintiff company's payment constitutes erroneous payment under Article 51 of the Framework Act on National Taxes and the defendant must make a decision of refund. Such decision of refund requires confirmation as it is necessary to confirm invalidity of the disposition of refund. However, since the tax disposition is revoked or erroneous payment is an unjust enrichment held by the state without any legal cause, the taxpayer has the right to claim a refund, and the right to claim a refund does not become final only when a decision of refund is made under Article 51 of the Framework Act on National Taxes (see Supreme Court Decision 88Nu6436, Jun. 15, 1989).

In addition, the court below alleged that the defendant's disposition of the payment notice of this case against the plaintiff company was unlawful, but the records show that the defendant made the payment notice of this case against the plaintiff company such as the time of original adjudication, and it is sufficiently recognized. All arguments are without merit.

2. We examine the second ground for appeal.

In a tax litigation, the application of Articles 18(2) and (3) and 20 of the Administrative Litigation Act is excluded in accordance with Article 56(2) of the Framework Act on National Taxes, but in a case where two or more administrative dispositions are carried out in a series of developmental processes for the same purpose, and are related to each other, or where the tax authorities have changed the tax disposition subject to the lawsuit while a tax suit is pending, and where the same reason is common, or where several persons are liable for the same obligation through the same administrative disposition, one of the taxpayers who are either subject to prior trial procedures or are subject to the same obligation may file a lawsuit seeking cancellation of the tax disposition without going through the previous trial procedure (see Supreme Court Decision 91Nu247 delivered on May 24, 191), so long as the taxpayer and the National Tax Tribunal have given an opportunity to reconsider the basic facts and legal issues through due process of prior trial (see Supreme Court Decision 91Nu247 delivered on May 24, 191).

However, in this case, the tax liability borne by the Plaintiff Company is based on the joint payment liability of the donor under Article 29-2 (2) of the Inheritance Tax Act, and the taxation requirements for the joint payment obligor under Article 38 of the Enforcement Decree of the same Act are different from the taxation requirements for the donee. Thus, the disposition imposing gift tax on the Plaintiff 1, the donee, and the disposition imposing the Plaintiff Company, the joint payment obligor, as the donor, are common only in that it is the cause of taxation for the same gift, and it shall not be regarded as an independent disposition, as it differs from the taxation requirements, and it does not constitute a case where it does not need to go through the overlapping procedure

In the above purport, the court below was just in rejecting the plaintiff company's preliminary claim on the ground that the plaintiff company did not go through the procedure of the prior trial on the disposition of the payment notice of this case, and there is no error of law by misunderstanding legal principles as to the prior trial procedure system in the lawsuit of revocation of tax imposition like the theory of lawsuit

3. We examine the grounds of appeal by the defendant litigation performer.

The legislative intent of Article 32-2(1) of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 1990) is to prevent the abuse of the title trust system as a means to avoid gift tax in the property that requires the transfer or exercise of the right. Thus, the purport of the legislation is to prevent the transfer or exercise of the right, so that the title of registration is different from the title of registration, rather than to avoid gift tax, if the title of registration is limited by the law or any other similar inevitable circumstance, it is not deemed a gift (see, e.g., Supreme Court Decisions 90Nu4669, Dec. 10, 191; 91Nu3956, Mar. 10, 1992).

According to the court below's duly admitted, if the plaintiff company purchases the land for the construction of a golf course, it is a general phenomenon that the land owner would evade sales in order to sell the land at a high price and avoid transaction with the corporation because the actual transaction price is likely to be revealed. Thus, the plaintiff 1, who worked for the non-party Korean Pharmacopoeia Co., Ltd. under the Korean Commercial & Pharmaceutical Group, to which the plaintiff company belongs, completed the registration of transfer of ownership for the land of this case under the name of the plaintiff 1, and did not evade gift tax. Thus, the plaintiff company cannot apply the above donation provision even if it purchased the land for the purpose of speculation or transferred the ownership of the land in the name of the plaintiff 1 for the purpose of evading corporate tax, such as the theory of lawsuit, and there is no error in the misapprehension of legal principles as to the theory of lawsuit, or in the rules of evidence or incomplete deliberation.

4. Therefore, each appeal by the plaintiff company and the defendant 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-man (Presiding Justice)