Whether the taxation by the administrative agency is unlawful or can be claimed for revocation on the ground of the occurrence of the claim for repayment

If the Plaintiff seeks revocation of a part of the disposition imposing capital gains tax as the purport of the claim, and the Plaintiff later filed a return and payment of capital gains tax after the transfer of land, etc., but the requirements for refund under Article 62(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989) were met, and the Defendant filed an application for refund to the Defendant’s taxation authority, but the Defendant’s refusal of refund was illegal, it would be only a dispute over the existence of the claim for refund under Article 62(1) of the same Act between the Plaintiff and the Defendant. Therefore, whether the Plaintiff’s failure to claim for refund is unreasonable or not, the Defendant’s taxation is unlawful or may not seek revocation on the ground that the claim for refund occurred by filing a lawsuit seeking the refund.

Article 62 (1) of the former Regulation of Tax Reduction and Exemption Act

Attorney Lee Young-young, Counsel for the plaintiff-appellant

Head of Yeongdeungpo Tax Office

Seoul High Court Decision 93Gu11779 delivered on November 17, 1993

The judgment below is reversed and the case is remanded to Seoul High Court.

Before determining the grounds of appeal, this paper examined ex officio.

According to Article 62(1) and (2) of the Regulation of Tax Reduction and Exemption Act (amended by December 30, 1989; hereinafter the same shall apply), Article 50 (amended by December 30, 1989), and Article 51 (amended by December 31, 1986) of the Enforcement Decree of the same Act (amended by December 31, 1986), capital gains tax on income accrued from the transfer of land to construction sites of national housing is refunded only in cases where the transferee constructs a building within a certain period of time and the transferor makes an application for refund along with documents proving payment of capital gains tax on the relevant land within three months from the completion date of construction. The head of the tax office in receipt of the application for refund shall determine the refund without delay and refund the refund within thirty days from the decision date, and Article 51 of the Framework Act on National Taxes on appropriation and refund of national tax refund shall apply mutatis mutandis to the application for

However, on October 17, 1990, the plaintiff sought the revocation of the part of KRW 525,416,220 among the disposition of imposition of capital gains tax of KRW 853,592,880 against the plaintiff (the third pleading statement stated that the above notification date was October 17, 1992 seems to be erroneous). The cause of the claim is that the plaintiff reported and paid capital gains tax and its defense tax after the transfer of the land, but thereafter, the plaintiff filed a return of the tax amount and filed a refund application (the completion of national housing) under Article 62 (1) of the Regulation of Tax Reduction and Exemption Act (the completion of national housing) with the defendant on June 17, 1992, but the defendant rejected this part of the refund on July 20.

Therefore, this case is merely a dispute over the existence of the right to claim a refund under Article 62 (1) of the Regulation of Tax Reduction and Exemption Act between the plaintiff and the defendant. Thus, whether the defendant's right to claim a refund is unreasonable or not can not be claimed for the cancellation because the plaintiff's right to claim a refund has occurred, separate from the lawsuit claiming a refund.

Therefore, the court below should explain whether the Plaintiff’s claim in this case is the purport of seeking revocation of taxation or seeking refund of the paid tax amount, and take corresponding measures. However, the court below neglected this and, on the other hand, ordered revocation of taxation, on the one hand, the Plaintiff’s tax amount paid should be refunded, and on the other hand, ordered revocation of taxation. Accordingly, the court below erred in the misapprehension of the duty of inspection and confirmation as to the subject of appeal and the existence of disposition.

Therefore, without further proceeding to decide on the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent

Justices Lee Jae-soo (Presiding Justice)