A. Whether the rejection of an application for refund filed by a taxpayer who paid the tax amount erroneously is an administrative disposition that can be subject to appeal litigation (negative)

B. The purport of Article 45(1) of the Local Tax Act

A. Except as otherwise expressly provided for in tax law, even a taxpayer in the form of tax return is not recognized as the right to apply for the refund of the amount of tax already filed and paid to the tax authority. Therefore, the refusal by the tax authority to apply for refund of the amount of tax already filed and paid cannot be deemed an administrative disposition that is the subject of appeal litigation.

B. The provisions of Article 45(1) of the Local Tax Act concerning the refund of money overpaid or erroneously paid are merely the purport of the taxing authority to immediately return the amount of erroneous or erroneously paid, the existence and scope of which have been already determined as unjust enrichment, to the taxpayer, and not the purport of the provision that the taxing authority has the duty to investigate and determine the existence and scope of the amount of erroneous or erroneously paid to the taxpayer. Therefore, this provision cannot be a ground provision

(a)Paragraph 1 of Article 45 of the Local Tax Act;

A. Supreme Court Decision 85Nu565 delivered on September 8, 1987, 87Nu438 delivered on February 23, 1988, and 88Nu2069 delivered on June 28, 198

Fire & Marine Insurance Co., Ltd., Counsel for the plaintiff-appellant

The head of Jung-gu Seoul Metropolitan Government

Seoul High Court Decision 87Gu998 delivered on February 11, 1988

The judgment of the court below is reversed.

The instant lawsuit is dismissed.

The total costs of litigation shall be borne by the plaintiff.

We examine the Plaintiff’s ground of appeal.

The court below's decision that the tax authority's receipt of the acquisition tax of this case in the course of the plaintiff's return and payment is merely a mere administrative act and cannot be viewed as an administrative disposition. Therefore, it is not reasonable to discuss it.

We examine ex officio.

The judgment of the court below held that the defendant's act of refusing the application for the refund of the acquisition tax in this case constitutes an administrative disposition on the premise that the defendant's act of refusing the application for the refund of the acquisition tax in this case constitutes the right of rejection.

However, the right to apply for the refund of the amount of tax already returned and paid to the tax authority is not recognized, except as otherwise expressly provided for in the tax law. Therefore, the refusal by the tax authority to apply for the refund of the amount of tax already returned and paid cannot be deemed an administrative disposition that is subject to appeal litigation (Supreme Court Decision 85Nu565 Decided September 8, 1987; Supreme Court Decision 87Nu438 Decided February 23, 198; Supreme Court Decision 88Nu2069 Decided June 28, 198).

Meanwhile, Article 45(1) of the Local Tax Act provides that the amount remaining after being appropriated for other unpaid impositions among the amount overpaid or erroneously collected shall be returned to the taxpayer without delay. This provision does not purport to provide that the tax authority shall promptly return the amount overpaid or erroneously paid, the existence and scope of which have already been determined as unjust enrichment, to the taxpayer, and that the tax authority has an obligation to investigate and determine the existence and scope of the amount overpaid or erroneously paid. Thus, this provision cannot be a ground provision recognizing the right to apply for the return of overpaid or erroneously paid amount to the taxpayer of local tax by filing a return. Article 25-2 of the Local Tax Act provides that the head of a local government shall immediately revoke or revise the relevant disposition when he/she confirms that the imposition and collection of local tax is illegal or unjust.

Therefore, since the plaintiff's application for refund of this case is not based on the legal or cooking right, the defendant's refusal of such application cannot be an administrative disposition subject to appeal litigation. Thus, the judgment of the court below which judged on the merits of this case is unlawful, but it affected the conclusion of judgment by misapprehending the legal principles on the refund of acquisition tax and administrative disposition.

Therefore, the part of the judgment of the court below against the defendant and the part dismissing the plaintiff's claim are reversed, and this part of the case is sufficient to be tried by the party members, and thus, the plaintiff's lawsuit seeking revocation of the plaintiff's rejection of the application for refund of this case is dismissed. The total costs of the lawsuit are assessed against the plaintiff as the losing party,

Justices Park Jong-dong (Presiding Justice)