A. Whether a claim is made in the administrative litigation procedure of the method of offence and defense that was not asserted in the previous trial procedure;

(b) Appropriateness of individual taxation on the property income of the family subject to summing up of assets.

A. In an appeal litigation, the plaintiff can assert the method of offence and defense which was not asserted in the prior trial procedure in the litigation procedure, and the court may examine it and determine the legitimacy of the administrative disposition.

B. The provisions of Articles 80(1), 81, and 103 of the Income Tax Act, and Articles 131 subparag. 1, 133, and 183(4) of the Enforcement Decree of the same Act are compulsory provisions that stipulate the legal fiction of attribution of income on the property income of the family subject to the sum of assets, the method of calculating the amount of tax, and the procedure for the imposition thereof in accordance with the principle of no taxation without representation. Thus, individual taxation on the property income of the family subject to sum of assets, which are not in accordance with the procedures prescribed in each of the above provisions, shall not be prevented even if the family subject to sum of assets, are jointly and severally liable for tax payment

(a) Articles 18, 38, 80(1) and 81(b) of the Administrative Litigation Act; Article 103 of the Income Tax Act; Article 183(4) of the Enforcement Decree of the Income Tax Act; Article 131 subparag. 1 and Article 133 of the Enforcement Decree of the Income Tax Act;

A. Supreme Court Decision 84Nu211 delivered on June 12, 1984

Plaintiff

Head of Mapo Tax Office

Seoul High Court Decision 84Gu1161 delivered on January 22, 1986

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to ground of appeal No. 1

In an appeal litigation, the plaintiff can assert the method of offence and defense that was not asserted in the previous trial procedure, and the court may deliberate and determine the legitimacy of the administrative disposition (see Supreme Court Decision 84Nu211 delivered on June 12, 1984). Thus, the court below reviewed the plaintiff's argument that was first raised in the administrative litigation of this case, that is, the plaintiff's argument that the tax disposition of this case was defective in the taxation procedure of this case, and decided the illegality of the taxation of this case is just and discussed.

2. As to ground of appeal No. 2

According to Article 80 (1) of the Income Tax Act, property income of a resident falling under the family subject to an aggregate of assets under the same Act shall be deemed to have the principal income earner as prescribed by the Presidential Decree, and shall be calculated by adding it to the global income of the principal income earner. Article 131 subparagraph 1 of the Enforcement Decree of the same Act provides that the person having the largest global income amount other than the income amount among the family subject to an aggregate of assets under Article 80 (1) of the same Act shall be the principal income earner. Article 81 of the same Act provides that in calculating the global income amount of the principal income earner under Article 80 (1) of the same Act, the sum of the global income amount of the principal income earner and other property income amount of the principal income earner shall be the global income amount of the principal income earner, and Article 133 of the Enforcement Decree of the same Act provides for the method of calculating the global income tax of the principal income earner and other property income amount of the principal income earner under the conditions as prescribed by the Presidential Decree.

Each of the above provisions shall be a compulsory provision that specifies the legal fiction of attribution of income, calculation method of tax amount, and procedure for the imposition of property income for the family members subject to summing up of assets in accordance with the principle of no taxation without representation. Therefore, the taxation of property income for the family members subject to summing up of assets not in accordance with the procedure under each of the above provisions shall not be exempted from being unlawful due to the defect in the taxation procedure. Under the same view, the court below held that the plaintiff's property income of this case, which is the family members subject to summing up of assets, is not subject to the tax calculation method and the procedure for imposition under each of the above provisions, and the taxation of this case, which is individually imposed on the plaintiff with respect to the 'real estate income of this case', is just

However, as seen above, Article 183 (4) of the Enforcement Decree of the Income Tax Act already stipulates that the tax base and tax amount determined by adding property income of the family subject to the aggregate of assets other than the principal income earner to the global income of the principal income earner shall be notified by a single tax payment notice, and the tax payment notice shall provide that the contents of property income of each family subject to the aggregate of assets shall be additionally stated in the above provision and Article 2 (3) of the above Act and Article 9 (1) of the National Tax Collection Act, which provide for the joint and several tax payment obligations, shall include not only the contents of property income of each family subject to the aggregate of assets but also the amount of tax jointly and severally payable with the principal income earner. Thus, even if a joint and several tax payment obligation exists with respect to other family subject to the aggregate of assets, such tax payment obligation shall follow the procedures prescribed in each of the above provisions, and thus, it cannot be discussed as independent taxation.

3. 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.

Justices Lee Jin-Post (Presiding Justice)