(a) Where a taxpayer can file an administrative lawsuit claiming the revocation of a taxation disposition even without going through the procedure of the preceding trial;

B. The case holding that even if a person, as a donor on the ground of real estate title trust, was subject to a disposition imposing gift tax on the actual owner who is jointly and severally liable for tax payment and a disposition imposing capital gains tax on the actual owner who is subject to transfer of real estate held in title trust, it cannot file an administrative lawsuit seeking revocation of the said disposition without going through a prior trial procedure for other taxation.

A. Under Article 56(2) of the Framework Act on National Taxes, the provisions of Articles 18(2), 18(3), and 20 of the Administrative Litigation Act do not apply to a tax lawsuit. However, if more than two 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 such disposition during the course of a tax lawsuit, and the same administrative disposition is common to the grounds for illegality, or where several persons are subject to the same obligation by the same administrative disposition, the prior disposition or when one of the taxpayers is subject to the same obligation, 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 further, the taxpayer may file a lawsuit seeking the revocation of the taxation disposition without undergoing the prior trial procedure.

B. Although the gift tax and defense detailed and disposition were imposed on the nominal owner on the ground of real estate title trust, the disposition imposing the gift tax on the actual owner who is a joint and several tax obligor and imposing the transfer income tax on the actual owner who is a joint and several tax obligor is the same as the subject of the gift or transfer, and even if the subject of the gift or transfer was a separate and independent disposition that was subject to a prior trial procedure on the subject of a single taxation, the said disposition may not be filed for the revocation of the tax disposition without going through the prior trial

Articles 55 and 56 of the Framework Act on National Taxes, Articles 18, 18, 2, 20 of the Administrative Litigation Act

Supreme Court Decision 85Nu393 decided Jul. 7, 1987 (Gong1987, 133) 88Nu7996 decided Nov. 10, 1989 (Gong1990, 38) 90Nu2383 decided Oct. 12, 1990 (Gong190, 2316)

Plaintiff

Head of Nam Busan District Tax Office

Busan High Court Decision 90Gu561 delivered on December 5, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal Nos. 1 and 2 are examined.

In a tax litigation, the provisions of Articles 18(2) and (3) and 20 of the Administrative Litigation Act shall not apply in accordance with Article 56(2) of the Framework Act on National Taxes. However, it is related to each other’s content that two or more administrative dispositions are conducted in a series of development processes conducted for the same purpose, or that a tax suit has been made in the course of a lawsuit for the same purpose, and the tax authority has changed the taxation disposition subject to the lawsuit and has shared the same reason, or where multiple persons are subject to the same obligation through the same administrative disposition, the prior disposition or when one of the taxpayers who are liable to pay the same obligation has made the Commissioner of the National Tax Service and the National Tax Tribunal provide the taxpayer with an opportunity to re-determine the basic factual relations and legal issues, and the taxpayer can file a lawsuit seeking the revocation of the tax disposition without going through the previous trial procedure (see, e.g., Supreme Court Decision 198Nu13989, Oct. 39, 198).

According to the reasoning of the judgment below, the court below found that the defendant, on June 17, 1987, purchased shares of 1/2 of the real estate of this case for which ownership transfer registration was made under the name of the non-party and held in title trust with the non-party, and thus, the non-party was in arrears with the gift tax and defense detail and disposition against the non-party, but the above non-party did not pay taxes. Accordingly, in the lawsuit of this case for objection filing period, the plaintiff was merely subject to the procedure of objection against the defendant and the request for examination against the Commissioner of the National Tax Service as stipulated in Article 55 of the Framework Act on National Taxes before filing the lawsuit, and the plaintiff was not subject to the procedure of appeal against the head of the National Tax Tribunal. However, although the 1/2 shares of the real estate of this case, which is owned by the plaintiff, were imposed the transfer income tax on the transfer of the real estate to the non-party, and the previous procedure of trial on the disposition is different, it cannot be deemed that the previous procedure of the judgment is unlawful.

In light of the record, the fact-finding and determination by the court below are justifiable, and the disposition imposing the gift tax of this case and the disposition imposing the transfer income tax of this case are identical only to the objects of the gift or transfer, and their principal taxpayers, the date of taxation, the grounds for taxation, and materials are separate separate dispositions. Thus, it cannot be deemed as a case where an administrative litigation seeking the revocation of the tax disposition can be filed without going through the previous trial procedure for other tax dispositions, as seen in the above legal principles.

Therefore, the court below's failure to make an incomplete deliberation on this point, erroneous determination of facts, and misapprehension of legal principles are groundless.

Therefore, without examining the remaining grounds of appeal on the merits, the appeal shall be dismissed, and all costs of appeal shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-dong (Presiding Justice)