In cases where there is a defect that is the reason for revocation in the initial taxation, whether the defect in the original taxation can be corrected by the rectification disposition that reduces the tax amount of the defective part (affirmative with qualification)

Since a reduction or a correction disposition has the nature of partial revocation of the original disposition, the defect of the original disposition may be corrected by the correction disposition that reduces the amount of the tax in question instead of a new taxation disposition, unless there are circumstances, such as the procedural grounds that affect the entire disposition, where there is a defect that is a ground for revocation of the original disposition.

Article 19 of the Administrative Litigation Act

Supreme Court Decision 91Nu391 delivered on September 13, 1991 (Gong1991, 2555) Supreme Court Decision 93Nu9989 delivered on November 9, 1993 (Gong1994Sang, 110) Supreme Court Decision 95Nu351 delivered on August 11, 1995 (Gong1995Ha, 3139 delivered on May 26, 1998) (Gong198Du3211 delivered on May 26, 199)

Plaintiff (Law Firm Sejong, Attorneys Kim Ba-young et al., Counsel for plaintiff-appellant)

Head of Central Tax Office

Supreme Court Decision 2000Du6237 Delivered on July 23, 2002

Busan High Court Decision 2002Nu3768 delivered on February 7, 2003

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Since the corrective disposition has the nature of partial cancellation of the original disposition (see, e.g., Supreme Court Decision 91Nu391, Sept. 13, 1991; Supreme Court Decision 95Nu351, Aug. 11, 1995). In a case where there is a defect that is a reason for revocation of the original disposition, unless there are circumstances that constitute a reason for revocation, it can correct the defect of the original disposition by the corrective disposition that reduces the amount of the corresponding portion of tax in lieu of a new tax disposition, unless there are circumstances that affect the entire disposition, etc.

In addition, if the Constitutional Court, after an administrative disposition was rendered based on the law, decided that the law was unconstitutional, the administrative disposition would be identical to that made without the legal basis. However, in order to make the defective administrative disposition null and void as a matter of course, the defect must be serious, and it must be obvious. In general, the circumstance that the law is in violation of the Constitution cannot be objectively obvious before the Constitutional Court's decision of unconstitutionality is made. Thus, it is reasonable to deem that such defect constitutes a ground for revocation of the above administrative disposition, and it does not constitute a ground for invalidation as a matter of course (see Supreme Court Decisions 92Nu9463, Oct. 28, 1994; 92Da55770, Mar. 3, 1995; 96Nu1689, Jun. 11, 1996, etc.).

According to the records, the defendant filed the lawsuit of this case seeking the cancellation of the initial disposition on February 198, 198 by asserting that the plaintiff's initial disposition on the income of 198 to 1990 is 1/2 of the rental income of the non-party, who is the plaintiff's wife, and the non-party's property income of 1/2 of the non-party, who is the non-party's family member subject to cumulative taxation, was not jointly and severally liable for the non-party's property income in the tax payment notice, and that the non-party's original disposition on the non-party 2's income of 198 to 1990 (the non-party 2's original disposition on the non-party's income of 1 to 200's aggregate taxation of the income of the non-party's family subject to cumulative taxation, and that the non-party's original disposition on the non-party 2's income subject to cumulative taxation on the non-party 1 to 98's income tax base.

In the same purport, the decision of the court below that the defendant did not cancel the initial disposition and make a new disposition of tax reduction or correction is justifiable, and it did not err in the misapprehension of the decision of the court below, which affected the conclusion of the judgment in violation of the Supreme Court decision of

2. Therefore, 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 on the bench.

Justices Shin Shin-chul (Presiding Justice)