[1] Whether the proviso of Article 24(1) of the Land Excess Profit Tax Act (affirmative) is retroactively applied (affirmative)

[2] Whether the decision of the tax authority to refund the land excess profit tax for the period of the scheduled determination exceeds the amount of the determined tax for the period of the scheduled taxation is a disposition subject to appeal litigation (negative)

[3] The method of litigation where a tax authority refuses to refund [2] (=civil procedure)

[4] Whether a revocation suit should be dismissed in a case where it is deemed that there is no disposition (affirmative)

[1] In the case of the Constitutional Court Decision 92Hun-Ba49, 52 on July 29, 1994, the provisions of the former Land Excess Gains Tax Act (amended by Act No. 4561 of Jun. 11, 1993, Act No. 4563 of Jun. 11, 1993), the Land Excess Gains Tax Act (amended by Act No. 4807 of Dec. 22, 1994), the Enforcement Decree of the same Act (amended by Presidential Decree No. 1470 of Dec. 31, 1994), and the Enforcement Rule of the same Act (amended by Presidential Decree No. 506 of May 19, 195), each of the provisions of the former Land Excess Gains Tax Act (amended by Act No. 4563 of Jun. 11, 1993), should not apply to the taxpayer unless it is disadvantageous to the taxpayer, and should not apply the entire tax amount to the taxpayer.

[2] Where the tax authority determined the tax base and the amount of tax for the scheduled taxable period as a result of the determination of the tax base and the amount of tax for the scheduled taxable period by the tax authority constitutes idle land, etc. subject to the land excess profit tax, and the amount of tax for the scheduled taxable period exceeds the determined amount of tax for the scheduled taxable period, such excess amount shall be naturally refunded to the taxpayer pursuant to the proviso of Article 24(1) of the Land Excess profit Tax Act. In this case, even if the tax authority decided to refund the amount of tax refund, the determination of the refund amount is merely an internal administrative procedure of the tax authority, and it is not a disposition that specifically and directly affects the existence or scope of the right to claim the refund that the taxpayer has, and thus

[3] In case where the pertinent land does not fall under the idle land, etc. subject to the land excess profit tax as of the end of the regular taxable period, and thus the land excess profit tax already paid is fully refunded, the existence and scope of the right to claim the refund of the above tax amount shall be determined pursuant to Articles 3, 8, 9, and the proviso of Article 24(1) of the Land Excess profit Tax Act. Furthermore, even if the owner of the land, who does not fall under the idle land, etc. as of the end of the regular taxable period, files a return to the effect that there is no tax base and tax amount to claim the refund of the land excess profit tax, such return is merely an application for the determination of the national tax refund under Article 51(1) of the Framework Act on National Taxes. Thus, even if the taxpayer is unfairly denied the refund, it shall not be deemed that there

[4] If there is no disposition imposing the land excess profit tax on which the plaintiff seeks revocation, the existence of an administrative disposition, which is the object of litigation, in an administrative litigation, shall be deemed the lawful requirement of litigation. Thus, unless there is no disposition seeking revocation, the lawsuit shall be dismissed as unlawful.

[1] Article 24 (1) of the Land Excess Profits Tax Act / [2] Article 4 subparagraph 1 of the Administrative Litigation Act, Article 51 (1) of the Framework Act on National Taxes, Article 24 (1) of the Land Excess Profits Tax Act / [3] Article 4 subparagraph 1 of the Administrative Litigation Act, Article 51 (1) of the Framework Act on National Taxes, Article 24 (1) of the Land Excess Profits Tax Act / [4] Article 205 (1) of the Civil Procedure Act, Article 4 subparagraph 1 of the Administrative Litigation Act, Article 8 (2) of the Administrative Litigation Act

[1] Constitutional Court Order 92Hun-Ba49, 52 decided July 29, 1994 (Hun-Ba7, 505), Supreme Court Decision 93Nu1791 decided Jan. 26, 1996 (Gong1996Sang, 814), Supreme Court Decision 93Nu13810 decided Jun. 28, 1996 (Gong1996Ha, 2412), Supreme Court Decision 96Nu8659 decided Feb. 14, 1997 (Gong1997Sang, 820), 95Da56323 decided Jul. 25, 197 (Gong1997Ha, 2656) / [23] Supreme Court en banc Decision 93Nu196989 decided Jun. 29, 198 (Gong297Nu94979 decided Jun. 29, 199)

Plaintiff

The Director of the Pacific District Office

Seoul High Court Decision 94Gu20480 delivered on April 25, 1997

The judgment of the court below is reversed and the lawsuit of this case is dismissed. All costs are assessed against the plaintiff.

We examine the grounds of appeal.

In the case of the Constitutional Court 92Hun-Ba49, 52 on July 29, 1994, the former Land Excess Gains Tax Act (No. 4177 of December 30, 1989, amended Act No. 4561 of June 11, 1993, Act No. 4563 of June 11, 1993), the proviso to the former Land Excess Gains Tax Act (No. 4807 of December 22, 1994, No. 1470 of December 31, 1994), and the Enforcement Rule of the same Act (No. 1470 of December 31, 1994) should be applied to each taxpayer, who is not yet subject to taxation, unless it is decided to be disadvantageous to the Supreme Court 16th 196 of June 16, 195).

According to the provisions of the Local Tax Act, the owner of idle land, etc. shall report the tax base and tax amount of land excess profit tax (hereinafter referred to as “land excess profit tax”) from January 1 to October 31 of the year following the year in which the end of the taxable period belongs (Article 15(1)), and the head of the competent tax office shall determine the tax base and tax amount by filing a return if the return is justifiable (Article 16(1)); if the owner of the idle land, etc. fails to file a return of tax base and tax amount, or any omission or error in the reported tax base and tax amount, he shall determine the tax base and tax amount and notify the owner of the relevant idle land, etc. thereof under the conditions as prescribed by the Presidential Decree (Article 16(2)); if the tax amount paid for the scheduled tax period exceeds the tax amount payable for the pertinent taxable period, such excess amount shall be refunded to the payer of the scheduled tax period (Article 24(1) proviso). In full view of the provisions of the above related Act, since the tax authority is merely subject to the scheduled tax base and tax amount payable for the scheduled tax period and tax amount under the proviso of Article 16(2).

However, for the taxation of the soil tax, it must be categorized as idle land, etc. as of the end of the taxable period (Article 3), and since the taxation requirement is not satisfied if it does not fall under idle land, etc. as of the end of the scheduled taxable period, it is clear in light of the legal principle that the taxation authority cannot make a determination of the tax base and tax amount, i.e., the procedure for realizing and confirming the tax claim already established, which is a procedure for realizing and confirming the tax claim, and it is also obvious that the tax authority cannot make a determination of the tax base and tax amount, and on the other hand, Article 15 and Article 16 of the Land Tax Act provides that the obligation to report the tax base and tax amount shall be imposed on the owner of the idle land, etc. subject to the soil tax as of the end of the scheduled taxable period, even if the soil tax was imposed on the land as of the date of the scheduled taxable period, if the land was excluded from the taxation of the soil tax at the end of the scheduled taxable period, it is not necessary

Therefore, in case where the relevant land does not fall under the idle land, etc. subject to the soil tax as of the end of the regular taxable period and the paid grassland is fully refunded, it shall be deemed that the existence and scope of the right to claim the refund of the above tax amount is finalized pursuant to Articles 3, 8, 9, and the proviso of Article 24(1) of the Local Tax Act. Furthermore, even if the owner of the land who does not fall under the idle land, etc. as of the end of the regular taxable period files a return to the effect that there is no tax base and tax amount to claim the refund of the farmland, this is merely an application for the determination of the national tax refund under Article 51(1) of the Framework Act on National Taxes. Thus, even if the taxpayer is unfairly denied the refund, it shall not be deemed a disposition subject to the appeal litigation, and the taxpayer may demand the refund thereof by a direct civil lawsuit (see, e.g., Supreme Court en banc Decision 200Da892912, Apr.

According to the reasoning of the judgment below, the court below acknowledged that the defendant decided to refund KRW 364,560 to the plaintiff on November 15, 1991 and notified the plaintiff of the decision on December 31, 1990 as of December 31, 199, which was the end of the scheduled period of taxation, and imposed a tax amount of KRW 10,189,080 on the land as of December 31, 1990, which was the land of this case, but thereafter on the land of this case, it was later constructed on November 11, 1993 and does not constitute idle land, but excluded from taxation object on the ground that it was constructed as of December 31, 1992 and does not constitute idle land. The judgment of the court below was just in determining that the defendant decided to refund only KRW 364,560 among the payable tax amount to the plaintiff and notified the plaintiff of this decision, and it did not constitute an administrative disposition of non-taxation for the first five tax period under the proviso of the former Tax Act.

However, the above determination by the court below is based on the following facts: (a) there is no tax disposition of KRW 9,824,520 on November 11, 1993, which the plaintiff sought revocation; and (b) the existence of an administrative disposition subject to litigation in an administrative litigation is a legitimate requirement; (c) so long as there is no above tax disposition seeking revocation, the lawsuit of this case shall be dismissed as unlawful.

Nevertheless, the judgment of the court below, which dismissed the plaintiff's claim on the premise that the lawsuit of this case is lawful, shall be erroneous in the misapprehension of the legal principles as to the legal requirements for administrative litigation. Thus, it is sufficient to reverse the judgment of the court below and to render a direct judgment by the members pursuant to Article 8 (2) of the Administrative Litigation Act and Article 407 subparagraph 1 of the Civil Procedure Act, and it is decided as per Disposition by the assent of all participating Justices on the bench that the lawsuit of this case is dismissed on the ground mentioned above,

Justices Lee Im-soo (Presiding Justice)