(영문) 서울고등법원 2011.5.19.선고 2010누35168 판결

The judgment of the first instance shall be revoked. The defendant shall take a disposition rejecting a request for correction made against the plaintiff on August 18, 2008.

such action.

Reasons

1. Facts of recognition;

The reasoning for this Court's explanation is that "Article 235 (2) of the Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010; hereinafter the same shall apply) 235 (2), 260-2, and 260-3 of the former Local Tax Act (wholly amended by Act No. 1021, Mar. 31, 2010; hereinafter the same shall apply)" in Article 235 (2), Article 260-2, and Article 260-3 of the former Local Tax Act (wholly amended by Act No. 1021, Mar. 31, 2010; hereinafter the same shall apply)" in Article 235 (2) of the former Local Tax Act is the same as that of the first instance court's judgment except for the first instance court's local tax act

2. Whether the lawsuit of this case is lawful

A. The plaintiff's assertion

Since Article 45-2 (2) of the Framework Act on National Taxes shall apply mutatis mutandis to the Plaintiff pursuant to Article 82 of the former Local Tax Act, the Plaintiff’s right to request for correction is recognized. ② or pursuant to Articles 25-2 and 45(1) of the former Local Tax Act, the Plaintiff shall be deemed to have the right to request correction. ③ Even if not, the Plaintiff shall be deemed to have the right to request correction on August 7, 2008, and the Plaintiff’s refusal on August 18, 2008 is sought on the premise that the instant refusal constitutes an administrative disposition.

B. Relevant statutes

Attached Form 3 is as shown in the "relevant Acts and subordinate statutes".

C. Determination

Article 82 of the former Local Tax Act provides that "Except as otherwise provided for in this Act and other Acts and subordinate statutes, the Framework Act on National Taxes and the National Tax Collection Act shall apply mutatis mutandis to the imposition and collection of local taxes." Article 45-2 (2) of the Framework Act on National Taxes provides that "The right to request the determination or correction of the tax base and amount of the national tax which was first reported and revised within two months from the date on which the person who filed a tax base return by the statutory deadline for filing the tax return or who received the determination of the tax base and amount of the national tax becomes aware of the occurrence of a certain cause, shall be entitled to request the determination or correction of the tax base and amount of the national tax which was revised within two months from the date on which the cause thereof arises. However, the former Local Tax Act, which was amended by Act No. 4810, Dec. 22, 1994, provides for the revised return system including the filing of an increase in tax amount and the revised return system, and Article 45-2 (2) of the former Local Tax Act provides for correction request system.

In addition, Article 25-2 of the former Local Tax Act provides that " When the head of a local government confirms that the imposition and collection of local taxes are illegal or unjust, he/she shall immediately revoke or revise such disposition," Article 45 (1) provides that "the impositions of the local government overpaid or erroneously paid and the repayment interest under Article 46 shall be appropriated for the impositions of other unpaid local governments, and the balance shall be refunded to the taxpayer or the person liable for special collection without delay." However, the above provisions provide that when the tax authority confirms that the imposition and collection are illegal or unjust, it is intended to promptly seek a prompt remedy for taxpayers by cancelling or changing the disposition immediately, and it cannot be deemed that the so-called local tax taxpayer's right to request correction is recognized. Furthermore, there is no ground to deem that the right to request correction based on the cooking is recognized.

I would like to raise an appeal.

Therefore, insofar as the Plaintiff’s right to request correction is not acknowledged as above, even if the Defendant responded to the Plaintiff’s request for correction, it cannot be viewed as a rejection disposition subject to appeal litigation (see Supreme Court Decision 98Du9608 delivered on July 23, 199, etc.). Thus, the Plaintiff’s lawsuit seeking revocation is unlawful under the different premise.

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is dismissed as unlawful, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges

Judges Cho Jae-ho

Judges Choi Byung-hoon

Judges semi-presidential mother

Site of separate sheet

A person shall be appointed.