In cases where the amount of tax payable for the scheduled period of land excess profit tax exceeds the determined amount of tax for a regular taxable period, whether the decision on refund or rejection of refund of such excess amount constitutes a disposition subject to appeal litigation (negative)

If the amount of tax payable for the scheduled taxable period exceeds the determined amount of tax for the scheduled taxable period as a result of the determination of the tax base and amount of tax for the scheduled taxable period on the idle land, etc. subject to the land excess profit tax, the excess amount should 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 refundable by the tax authority, the decision on refund is merely a disposition under Articles 51 and 52 of the Framework Act on National Taxes, which provides internal administrative procedures of the tax authority, and is not a disposition that specifically and directly affects the existence or scope of the right to claim the refund of the taxpayer, and the right to claim the refund of the amount of tax paid for the scheduled taxable period is specifically determined by the tax base and amount of tax for the scheduled taxable period, so it cannot be deemed a disposition that becomes the object of an appeal litigation even if the taxpayer has been unfairly refused the refund, and it is sufficient that the taxpayer can request the refund by a

Article 51(1) of the Framework Act on National Taxes, Article 24(1) of the Land Excess Profits Tax Act

Supreme Court en banc Decision 88Nu6436 Decided June 15, 1989 (Gong1989, 1096) Supreme Court Decision 89Nu2912 Decided April 27, 1990 (Gong1990, 1182) Supreme Court Decision 92Nu14250 Decided December 2, 1994 (Gong195Sang, 513)

Plaintiff

The Director of the Pacific District Office

Seoul High Court Decision 94Gu20497 delivered on December 28, 1995

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

The grounds of appeal (to the extent of supplement in case of any description in the grounds of appeal submitted after the expiration of the period) are examined.

In the case of the Constitutional Court Decision 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. 1994), and the Enforcement Rule of the same Act (No. 1470 of December 31, 1994, and No. 4563 of June 11, 1993) shall be applied to each taxpayer, who shall not be subject to taxation, retroactively to the Supreme Court Decision 196Da16807 of May 16, 196 (see, e.g., Supreme Court Decision 2016Nu1969696 of this case).

According to the provisions of the Local Tax Act, the owner of idle land, etc. shall report the tax base and tax amount of the local 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)). The head of the competent tax office shall determine the tax base and tax amount by the return if the return is justifiable (Article 16(1)), and where the owner of idle land, etc. fails to make a tax base return or fails to pay tax base and tax amount of the reported tax base and tax amount, and notify the owner of such idle land, etc. of such excess amount as prescribed by the Presidential Decree (Article 16(2)), and where the amount of tax payable for the scheduled tax period exceeds the tax amount payable for the pertinent taxable period, such excess amount shall be refunded to the payer (Article 24(1) proviso). In full view of these relevant provisions, if the tax office determines the tax base and tax amount for the scheduled tax period and the amount of tax payable for the scheduled tax period exceeds the amount of tax payable for the scheduled tax period, it shall be refunded to the taxpayer.

However, in order to impose a soil tax, it must correspond to idle land, etc. as of the end of the taxable period (Article 3), and if it does not fall under idle land, etc. as of the end of the scheduled taxable period, it shall not be established as an abstract tax claim investigation because the taxation requirements are not met. Therefore, in light of legal principles, the tax authority cannot make a determination of the tax base and tax amount, i.e., a procedure to realize and determine the tax claims already established objectively and abstractly, as well as the duty to report the owner of the idle land, etc. under Articles 15 and 16 of the Land Tax and Tax Act, while allowing the duty to report the tax base and tax amount on the idle land, etc. subject to a soil tax to determine the tax base and tax amount on the land, etc. as of the end of the scheduled tax period, even if the soil tax was imposed as of the scheduled tax period as of the end of the scheduled tax period, if the relevant land was excluded from the subject of the soil tax imposition as of the scheduled tax period.

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 is fully refunded, the existence and scope of the right to claim the refund of the tax payable shall be determined pursuant to Articles 3, 8, 9, and the proviso of Article 24(1) of the Local Tax Act, and furthermore, even if a person other than the owner of the idle land, etc. files a report to the effect that there is no tax base and tax amount to claim the refund of the soil tax as of the end of the regular taxable period, it is merely an application for the refund under Article 51(1) of the Framework Act on National Taxes. Thus, even if the taxpayer is unfairly denied the refund, it cannot be deemed that there is a disposition subject to the appeal litigation, and the taxpayer may directly request the refund of the soil tax and it is sufficient (see, e.g., Supreme Court en banc Decision 89Nu2912, Apr. 27, 190).

According to the reasoning of the judgment below, the court below acknowledged that the defendant decided to refund KRW 994,260 as calculated in accordance with the proviso of Article 24 (1) of the former Inheritance and Gift Tax Act and notified the plaintiff on November 6, 1993 of the decision. The defendant decided to refund only KRW 994,261 out of the payable tax amount to the plaintiff on December 31, 1990 and notified the plaintiff of the decision to refund KRW 15,007,730 as of December 31, 1990, and thereafter, the plaintiff's lawsuit of this case was unlawful. In light of the relevant Acts and subordinate statutes and the above legal principles, the judgment of the court below is justified, and there is no error in the misapprehension of legal principles as alleged in the ground of appeal.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-hun (Presiding Justice)