[1] In the case of corporate tax based on the same corporate income and the detailed and detailed dispositions, and Class A employment income and defense detailed and disposition, whether the effect of the request for review only for the corporate tax and defense detailed and disposition reaches Class A employment income and Class A employment income and defense detailed and disposition (negative), and whether it constitutes a case where it is not necessary to go through the overlapping procedure (negative)

[2] The subject of a judgment on the revocation of a taxation disposition, the submission time and the scope of revocation

[1] Articles 18(2) and (3), and 20 of the Administrative Litigation Act do not apply to tax litigation pursuant to the provisions of the Framework Act on National Taxes. However, if two or more administrative dispositions are conducted in the course of a phased and developmental process, and are related to each other, in the course of a tax litigation, the tax authority changed the taxation disposition, which is the object of the tax litigation, and the grounds for illegality are common, or multiple persons are identical to each other through the same administrative disposition, in relation to the preceding disposition or when one of the persons liable for tax payment bears the same obligation under the same administrative disposition, the Commissioner of the National Tax Service and the National Tax Tribunal provided an opportunity for the National Tax Tribunal to re-determine the basic facts and legal issues, and in addition, if there is a justifiable reason, such as where the taxpayer seems to have caused the tax obligor to go through the preceding trial procedure, it shall be deemed that the taxpayer may file an administrative litigation seeking the cancellation of the taxation disposition even without going through the preceding trial procedure. However, in the case of corporate tax and detailed dispositions based on the same corporation income, Class A and defense income tax, and detailed disposition cannot be deemed as independent and independent taxation procedures.

[2] In a lawsuit seeking revocation of a taxation disposition, whether the pertinent disposition is lawful is determined depending on whether it exceeds the legitimate tax amount, and the parties may submit arguments and materials supporting the objective tax liability amount until the closing of arguments at the trial court. When a legitimate tax amount is calculated based on such materials, only the portion exceeding the legitimate tax amount shall be revoked, and the entire tax amount shall not be revoked.

[1] Articles 55 and 56 of the Framework Act on National Taxes; Articles 18(2) and (3), and 20 of the Administrative Litigation Act / [2] Article 19 of the Administrative Litigation Act

[1] Supreme Court Decision 85Nu139 delivered on November 12, 1985 (Gong1986, 50) Supreme Court Decision 92Nu4383 delivered on September 8, 1992 (Gong1992, 2914) Supreme Court Decision 99Du1557 delivered on September 26, 200 (Gong200Ha, 2249) / [2] Supreme Court Decision 90Nu8459 delivered on April 12, 1991 (Gong191, 1398), Supreme Court Decision 92Nu4840 Delivered on July 24, 1992 (Gong192, 2586), Supreme Court Decision 96Nu52909 delivered on March 28, 1997 (Gong1992, 2586), Supreme Court Decision 2009Nu532989 delivered on March 29, 2007)

Tae Young-young Development Co., Ltd. (Gu Ho-gu, Counsel for the defendant-appellant)

The superintendent of the tax office of Seocho tax office (before a correction: the superintendent of the tax office)

Seoul High Court Decision 93Gu11281 delivered on July 16, 1999

Of the part of the judgment below against the defendant, the part of corporate tax and defense tax for the business year 1989 are reversed, and that part of the case is remanded to the Seoul High Court. The defendant's remaining appeals and the plaintiff's

We examine the grounds of appeal.

1. Plaintiff’s ground of appeal

(a) First point:

In a tax suit, the provisions of Articles 18(2) and (3) and 20 of the Administrative Litigation Act are not applicable under the provisions of the Framework Act on National Taxes. However, if two or more administrative dispositions are taken in the course of a phased and developmental process and are related to each other, the tax authorities have changed the taxation disposition subject to the said disposition while the tax suit is pending, and the same reason is common. In a case where several persons are subject to the same obligation under the same administrative disposition, one of the persons liable for tax payment and taxpayers has granted an opportunity to make a new determination on the basic facts and legal issues, as in the preceding disposition or when one of them has gone through legitimate prior trial procedures, the Commissioner of the National Tax Service and the National Tax Tribunal provided a taxpayer with an opportunity to file an administrative suit seeking the cancellation of the taxation disposition even without undergoing the prior trial procedure, and it does not constitute a separate and detailed defense against Gap and the preceding five separate taxation procedures (see, e.g., Supreme Court Decisions 92Nu4383, Sep. 8, 192; 2009Du1595.

According to the facts and records confirmed by the court below, when the plaintiff filed a request for review of the disposition of imposition of corporate tax and defense tax in this case on June 1, 1992, and the above claim was dismissed on July 31 of the same year, the plaintiff filed a request for review on it on August 31 of the same year. On the other hand, it is apparent that the plaintiff filed a request for a trial on December 11 of the same year without filing a request for review of the disposition of collection of income tax and defense tax based on the same corporate income as the above disposition of imposition of corporate tax in this case. Thus, the judgment of the court below which held that the disposition of collection of income tax in this case and defense tax in this case did not go through legitimate pre-trial procedure is just in accordance with the legal principles as seen earlier,

(b) Second point:

Examining the reasoning of the judgment below in light of the records, it is just that the court below deemed KRW 61,778,731 as processing expenses and excluded it from corporate tax in calculating corporate tax, and there is no error of law such as misconception of facts against the rules of evidence as alleged in the grounds of appeal.

2. As to the Defendant’s ground of appeal

(a) First point:

Examining the reasoning of the judgment below in light of the records, it is just that the court below did not charge 5,373,250 won out of the vehicle rent in calculating corporate tax for the business year 1989, and there is no error of law such as misconception of facts against the rules of evidence as alleged in the grounds of appeal

(b) Second point:

In a litigation for revocation of a taxation disposition, whether the disposition exceeds a legitimate tax amount or not, the parties concerned may submit arguments and materials supporting the objective tax liability amount until the closing of argument in the fact-finding court. When calculating the legitimate tax amount to be imposed lawfully based on such materials, only the portion exceeding the legitimate tax amount shall be revoked and the entire tax amount shall not be revoked (see, e.g., Supreme Court Decisions 90Nu8459, Apr. 12, 1991; 92Nu4840, Jul. 24, 1992; 96Nu15022, Mar. 28, 197).

However, according to the reasoning of the lower judgment and the record, the Plaintiff is asserting that the disposition of imposition of corporate tax and defense tax for the business year 1989 of this case was not carried out by the Defendant as processing expenses, and that the amount of KRW 5,373,250 of the vehicle rent, which was not carried out by the Defendant, is not processed expenses. Thus, if the lower court deemed the above vehicle rent to be not processed expenses, it should only revoke the excess portion, if the amount of the tax imposed exceeds the amount calculated by the above method, compared with the amount of the tax imposed and the amount of the corporate tax and the tax imposed for the business year 1989

Nevertheless, the court below revoked the entire disposition of corporate tax and defense tax in the business year 1989 without calculating the legitimate tax amount. In so doing, there is an error of law by misapprehending the legal principles as to the scope of revocation of the disposition of taxation, and the ground of appeal pointing this out has merit.

3. Therefore, the part of the judgment below against the defendant regarding corporate tax and defense tax for the business year 1989 and this part of the case is reversed, and remanded to the court below for a new trial and determination. The defendant's remaining appeals and the plaintiff's appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)