[1] Whether the tax authority's notification of revised transfer income tax return along with a copy of the decision decision document stating the tax base and amount of tax, etc. constitutes taxation (affirmative)

[2] The duty of explanation in administrative litigation

[1] If a copy of the decision of capital gains tax stating the tax base and amount of tax stipulated in Article 128 of the Income Tax Act, which provides for the procedure for imposing income tax, is attached to a notification of the revised return of capital gains tax, the tax authority's notice of the revised return is "the result of the revised return" and the copy of the decision is attached to the tax payer's response form for the revised return, it cannot be deemed that the disposition of capital gains tax was made even if the notice was made without the method of tax payment under Article 183 (1) of the Enforcement Decree of the Income Tax Act.

[2] Article 8 (2) of the Administrative Litigation Act provides that the Civil Procedure Act shall apply mutatis mutandis to an administrative litigation unless otherwise provided by this Act. In a tax lawsuit, Article 126 of the Civil Procedure Act, which provides for the court's duty of explanation and the duty of stating legal matters, shall apply mutatis mutandis.

[1] Article 45 of the former Framework Act on National Taxes (amended by Act No. 4810 of Dec. 22, 1994); Article 128 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994); Article 83 (1) of the former Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 22, 1994); Article 183 (2) of the former Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 22, 1994) / [2] Article 8 (2) of the Administrative Litigation Act; Article 126 of the Civil Procedure Act

[1] Supreme Court Decision 82Nu383 delivered on March 27, 1984 (Gong1984, 732), Supreme Court Decision 90Nu3379 delivered on November 13, 1990 (Gong1991, 121), Supreme Court Decision 96Nu19352 delivered on April 11, 1997 (Gong1997Sang, 14Nu4325 delivered on February 28, 1995 (Gong195Sang, 1500), Supreme Court Decision 95Nu16165 delivered on July 30, 196 (Gong196Ha, 2729), Supreme Court Decision 9Nu78689 delivered on October 15, 1996 (Gong397868 delivered on October 16, 199)

Plaintiff

The Director of the National Tax Service

Daejeon High Court Decision 95Gu1574 delivered on February 9, 1996

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below acknowledged the following facts: (a) on October 30, 1993, the Plaintiff sold 1,498 square meters (hereinafter “the land in this case”) to the non-party corporation corporation, and paid 116,192,30 won to the non-party corporation on May 31, 1994 when filing a final return of capital gains tax on May 31, 1994; (b) on June 25, 1994, the Plaintiff filed a revised return on the contents that the 404 square meters out of the land in this case constitutes land annexed to one household and the remaining 1,094 square meters constitute land subject to non-taxation; and (c) the Defendant filed an application for the full refund of capital gains tax already paid; and (d) on this basis, the Defendant fell under the land in this case’s case’s 404 square meters as land subject to non-taxation or the remainder of the land subject to taxation; and (d) did not refund only the remaining 304,1,208080 won.

In addition, the defendant's decision on October 4, 1994 was made ex officio, and the transfer income tax was not imposed and notified by way of determining the transfer margin and the amount of tax and delivering the tax base, etc. specifically to the plaintiff who filed a revised return after voluntarily paying the transfer income tax. The plaintiff's response to seeking a refund of the transfer income tax that was already voluntarily paid with the revised return on the ground that the land in this case is the land of 1 household or 1 house or 8 years or more, and the transfer income tax is a non-taxation object. However, the transfer income tax on the land in this case is a non-taxation object, but the remaining part is not a self-farmland, and thus the transfer income tax is not a non-taxation object. Thus, even if the plaintiff rejected the revised return and refused the refund, it cannot be deemed a taxation disposition that becomes the object of an appeal litigation in accordance with the procedure of the Income Tax Act on October 4, 1994, and even if the plaintiff rejected the return at the same time, the tax return cannot be subject to the revised report of an independent administrative disposition.

However, it is difficult to accept the judgment of the court below on the legal nature of the defendant's notification of October 4, 1994.

The transfer income tax is not determined on the ground that there was a preliminary or final return on transfer margin, and there is a taxation disposition that the tax authority notifies the tax base and tax amount to Article 128 of the former Income Tax Act (wholly amended by Act No. 4803 of Dec. 22, 1994) and Article 183 of the Enforcement Decree thereof (wholly amended by Presidential Decree No. 1467 of Dec. 31, 1994). According to the records, the defendant's notice of October 4, 1994, which the court below used as the data for the determination, is "the notice of the result of the revised return", and the contents are "the result of the revised return of the transfer income tax", "the return of the original return of June 25, 1994 related to the revised return of transfer income tax which was returned to the original report of June 25, 199, included the result in the revised return of transfer income tax amount in the revised report of 1963%, 1963 and 19643.65% of the capital gains tax rate attached.

According to the contents of this decision, since the tax base and amount of tax stipulated in Article 128 of the Income Tax Act, which provides for the procedure for imposing the income tax, are written in the form of response to the plaintiff's revised return, if the copy was notified in the response form as seen above, even if the notification was made without the method of tax payment under Article 183 (1) of the Enforcement Decree of the Income Tax Act, there is no room to deem that the disposition for imposing the income tax under the relevant provisions was taken (see Supreme Court Decisions 82Nu383, Mar. 27, 1984; 90Nu3379, Nov. 13, 190).

Meanwhile, Article 8(2) of the Administrative Litigation Act provides that the Civil Procedure Act shall apply mutatis mutandis to administrative litigation unless otherwise provided for in this Act. In a tax lawsuit, Article 126 of the Civil Procedure Act that provides for the court’s explanation duty and the intellectual duty of legal matters shall apply mutatis mutandis. According to the records, the Plaintiff’s purport of the instant claim is to seek revocation of the disposition of refusal to refund or to refuse to correct the return of transfer income tax amounting to KRW 82,071,50 against the Plaintiff as of October 4, 1994, stating that “the Plaintiff shall revoke the disposition of refusal to refund capital gains tax return amounting to KRW 82,071,50 against the Plaintiff as of October 4, 1994.” However, in oral proceedings, the Defendant alleged that the disposition of refusal is unfair (Records 31,32 pages of the record) at the hearing, and considering the fact that the Plaintiff is self-owned farmland on the premise that the disposition of imposition is also subject to non-taxation.

Therefore, the court below should have ordered the plaintiff to raise an objection to the purport and the subject of the appeal, given an opportunity to present related arguments to clarify the litigation relations, and should have deliberated on the merits. However, by deciding that the disposition of this case is not subject to administrative litigation ex officio by referring to the language and text of the purport of the claim, the court below did not perform its duty to explain and explain in accordance with Article 8 of the Administrative Litigation Act and Article 126 of the Civil Procedure Act (see Supreme Court Decisions 94Nu4325, Feb. 28, 1995; 95Nu16165, Jul. 30, 1996; 96Nu7878, Oct. 15, 196). Thus, the part of the grounds for appeal pointing this out is justified.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)