2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The following facts do not conflict between the parties, or can be acknowledged according to the purport of the whole pleadings in the statement in Gap evidence 1-1 through 3, Eul evidence 1-1-3, 2-1 through 4, 3-2 through 4, and 3-4:

A. The Plaintiff’s return and payment of each global income tax for the years 196 through 1998;

In filing each return of each of the comprehensive income tax for the year 196 through 1998 on the date indicated below, the Plaintiff returned each of the following tax on each of the following dates, according to Article 61(1) of the former Income Tax Act (amended by Act No. 6781, Dec. 18, 2002; hereinafter the same shall apply) which was in force at the time, and calculated based on the aggregate of the property income of the non-party, who is his spouse, in his global income, as the principal income earner, the sum of the property income of the non-party, who is his/her spouse, as his/her total income, as his/her total income, and paid each tax on the date indicated in the “payment date” column.

본문내 포함된 표 ？ 신고일자 신고금액 납부일 납부세액 1996년 귀속 종합소득세 1997. 5. 31. 112,450,983원 1997. 5. 31. 89,099,156원 1997. 7. 15. 23,351,827원 1997년 귀속 종합소득세 1998. 5. 31. 136,144,131원 1998. 5. 31. 68,256,318원 1998. 6. 1. 34,266,683원 1998. 7. 15. 34,083,354원 1999. 4. 30.(수정신고) 140,511,573원 1999. 4. 28. 3,905,218원 1998년 귀속 종합소득세 1999. 5. 31. 101,978,255원 1999. 5. 31. 78,688,045원 1999. 7. 15. 23,290,210원

(b) The primary decision of correction; and

The director of the Yongsan District Tax Office found any error in the contents of each global income tax reported and paid by the Plaintiff in 196 through 198 as above, and determined the increase in each of the above global income tax (hereinafter “the first decision of correction”), and accordingly, the Plaintiff additionally paid the respective increased tax amount by the first decision of November 30, 2001. Specifically, the increased tax amount is KRW 151,962,760 in the case of global income tax for which 197 was attributed, and KRW 121,063,50 in the case of global income tax for which 198 was attributed, and KRW 11,451,187 in the case of global income tax for which 197 was attributed, and KRW 19,085,295 in the case of global income tax for which 197 was attributed.

(c) The second decision of correction.

After that, in imposing global income tax on the plaintiff and the non-party based on the result of the investigation by the Central Tax Office of the non-party corporation working as the representative director, the head of Samsung District Tax Office and the head of Yongsan Tax Office determined that the other global income is more than the non-party’s property income except for the property income among both parties. In calculating the amount of tax on the plaintiff, the calculation of the amount of tax on the non-party is based on the method of calculating the amount of tax on the non-party’s entire property income. Accordingly, on April 15, 2002, the head of Samsung District Tax Office imposed global income tax on the plaintiff and the non-party for 1996, respectively. On October 1, 2002 and the non-party’s global income tax on the non-party corporation for 197 and 198, the amount of tax on the non-party’s total tax amount after deducting the amount of tax on the non-party’s total income tax amount on each of the following calculation method (hereinafter “the non-party’s total tax amount”).

(unit: source)

본문내 포함된 표 ？ 1996년 1997년 1998년 원고 소외인 원고 소외인 원고 소외인 총결정세액 4,572,432 208,975,528 5,042,010 229,441,661 5,138,763 180,770,825 기납부 세액공제액 4,572,432 166,664,103 5,042,010 181,355,717 5,138,763 137,108,786 추가고지액 ？ 42,311,425 ？ 48,085,944 ？ 43,662,039

D. Decision of unconstitutionality on Article 61 of the former Income Tax Act

On August 29, 2002, the Constitutional Court ruled that Article 61 of the former Income Tax Act, which provides that property income of married couple should be imposed after adding up property income of married couple, was unconstitutional.

(e) Related statutes;

[former Income Tax Act]

Article 61 (Cumulative Taxation on Property Income)

(1) If a resident or his/her spouse has any interest, dividend, or real estate rental income (hereinafter referred to as "property income"), the principal income earner prescribed by Presidential Decree from among the resident and his/her spouse (hereinafter referred to as "principal income earner") shall be deemed to have property income of his/her spouse (hereinafter referred to as "spouse subject to summing up of assets"), and the tax amount shall be calculated by summing it up in the global

(2) The determination of the principal income earner shall depend on the situation as of the end of taxable period.

③ 제1항 의 규정에 의하여 자산소득을 주된 소득자의 종합소득에 합산하여 세액을 계산하는 경우에 자산합산대상배우자에 대하여는 그 자산소득외의 소득에 한하여 세액을 계산한다.

④ 제1항 에 규정하는 주된 소득자의 종합소득금액에 대한 세액의 계산에 있어서는 주된 소득자의 종합소득금액과 자산합산대상배우자의 자산소득금액의 합계액을 주된 소득자의 종합소득금액으로 보고 대통령령이 정하는 바에 의하여 계산한 금액에서 주된 소득자의 종합소득금액과 자산합산대상배우자의 자산소득금액에 대하여 이미 납부한 세액(가산세액을 제외한다)의 합계액을 공제한 금액을 그 세액으로 한다.

[Framework Act on National Taxes]

Article 51 (Appropriation and Refund of National Tax Refund)

(1) If a taxpayer erroneously pays any national tax, additional dues or disposition fee for arrears, or there is an amount of tax to be refunded under the tax-related Acts (where any amount of tax to be deducted from the amount of tax refundable under the tax-related Acts exists, referring to the remaining amount after deduction), the head of a tax office shall immediately determine such erroneous payment, excess payment or refund amount as a refund of national tax. In such cases, any claim for refund due to erroneous or double

Article 52 (Additional Payment on Refund of Taxes)

Where the head of a tax office appropriates or pays the national tax refund pursuant to the provisions of Article 51, he shall add to the national tax refund the amount calculated according to the interest rate determined by the Presidential Decree in consideration of the period from the day following the day specified in the following subparagraphs to the day when appropriated or determined for payment, and the deposit interest rate of financial institutions (hereinafter referred to as “additional payment on the national refund”). In this case, in the application of the provisions of subparagraph 1, the amount paid by interim prepayment or withholding pursuant to the tax-related Acts shall be

1. For a national tax refund due to rectification or cancellation of the return or imposition forming the basis of the relevant payment after an erroneous or double payment, or a payment, the day of relevant payment: Provided, That if the national tax refund was paid in two or more installments, it shall be the last day of payment, but if the national refund exceeds the final payment, it shall be each due date of national tax refund computed retroactively in the order of due dates until it reaches such amount;

5. For a national tax refund owing to the amendment of a law after lawful payment, the enforcement date of the law; and

Article 54 (Extinctive Prescription of National Tax Refund)

(1) Where a taxpayer's refund of national tax and refund of national tax on the refund of national tax are not exercised for five years from the time it can be exercised, extinctive prescription

2. The plaintiff's assertion

The Plaintiff’s global income tax amount for the year 196 through 1998 is determined as the amount of tax reduced or corrected due to the Plaintiff’s initial return and payment, and the tax authority’s secondary decision of reduction after the tax authority’s first decision of reduction. As such, the portion exceeding the amount of tax previously paid exceeds the amount of tax determined on global income constitutes the amount of overpaid or erroneously paid under Article 51(1) of the Framework Act on National Taxes. Therefore, the Defendant is obliged to pay the Plaintiff the aforementioned overpaid or erroneously paid amount, additional refund, and delay damages for such amount pursuant to Articles 51 and 52 of the Framework

3. Determination

A. Determination on the claim for refund of global income tax reverted to year 1996

On May 31, 1997, the plaintiff filed a return of KRW 112,450,983 with global income tax for the year 196 and paid all of them on the same day and July 15, 1997. After the taxing authority's first decision of correction, the late payment of the increased tax amount due to the taxing authority's first decision of correction was made; on the basis of Article 61 of the former Income Tax Act of April 15, 2002, the amount of the tax payable for the plaintiff shall be adjusted to KRW 4,572,432; on the other hand, the amount of the tax payable for the plaintiff shall be adjusted to KRW 208,975,528 for the non-party; on the other hand, the amount of the tax paid by the non-party shall be adjusted to KRW 208,975,528 for the non-party; on the other hand, the amount of the tax paid by the non-party shall be added to the non-party.

At the time of April 15, 2002, which was the date of the second decision of the Samsung Tax Office's decision of unconstitutionality on Article 61 of the former Income Tax Act, the couple's property income is subject to the comprehensive taxation method that regards the plaintiff and the non-party as a single taxable unit. Therefore, the second decision of Samsung Tax Office's decision of unconstitutionality is legitimate and effective, and the defendant has a legal basis to continue to hold the remainder after deducting the amount of the second decision of 4,572,432 from the plaintiff's already paid tax amount according to the calculation method under Article 6 (4). This is because the contents of the second decision of Samsung Tax Office's decision of unconstitutionality include the plaintiff's property income from the plaintiff to the non-party, which is the basis of calculating the non-party's income amount, and the amount of the non-party's property income increases as much as possible, and there is no reason to acknowledge that the plaintiff's claim for return of the remaining portion of the national tax refund tax amount as the non-party's claim.

B. Determination on the claim for refund of each global income tax accrued in 197 and 1998

(1) Determination as to the cause of claim

(A) Around May 31, 1998 and April 30, 1999, the Plaintiff filed a return of KRW 140,511,573 with global income tax for 197; KRW 101,978,255 with global income tax for 198 May 31, 199; the Plaintiff’s global income tax for 151,962,760 won with global income tax for 197 as a result of the first correction by the tax authority; and the Nonparty’s global income tax for 121,063,50 won with global income tax for 1998 and 121,063,50 won with global income tax for 198 years with global income tax for 198 years and 196 years with global income tax for the Plaintiff’s total income tax for 20 years and 198 years with the determination of the Plaintiff’s global income tax for 19 years and 198 years with respect to the Nonparty.

On October 1, 2002, Article 61 of the former Income Tax Act, which is the basis of comprehensive taxation on property assets of the Plaintiff’s husband and wife, has already been unconstitutional on October 1, 2002, to calculate the global income tax base of the Nonparty based on Article 61 of the former Income Tax Act, which is the basis of comprehensive taxation on property assets of the Plaintiff’s husband and wife, was determined as the amount of each increase in the global income tax base for 1997 and 198. Since the Plaintiff’s second reduction decision of October 1, 202, the Plaintiff’s tax amount was excluded from the Plaintiff’s property income due to the Plaintiff’s second reduction decision of the director of the Yongsansan Tax Office’s second reduction decision of October 1, 202, but the Nonparty’s tax amount was increased as the basis of calculation of the global income tax amount for the Plaintiff’s property income, and thus, the Defendant is not obligated to receive the Plaintiff’s property tax amount due to the Plaintiff’s excess of the Plaintiff’s tax amount due under the National Tax Act.

(B) Furthermore, the amount of global income tax to be paid by the Defendant is KRW 5,042,010 for KRW 5,00 for KRW 25,00 for KRW 197 for KRW 25,00 for KRW 25,00 for KRW 25,00 for KRW 25,00 for KRW 198 for global income tax for KRW 5,138,76,318 for global income tax for KRW 197; KRW 34,26,683,683, June 1, 198; KRW 197, KRW 295 for KRW 25, KRW 197 for KRW 25, KRW 97, KRW 1985 for KRW 25, KRW 97, KRW 1965 for KRW 36,975 for global income tax for KRW 97, KRW 1985 for KRW 34,975, KRW 199, KRW 286,3638,6865,19

(C) We examine the additional amount for the following:

1) First of all, since the above refund falls under the national tax refund due to correction of a return which served as the basis for payment after payment, Article 52 subparag. 1 of the Framework Act on National Taxes, the initial date of calculation of additional dues should be deemed the following day of the Plaintiff’s tax payment. In the case of global income tax for which the Plaintiff paid in May 31, 1998, KRW 68,256,318, and KRW 34,266,683, June 1, 198, KRW 34,083,354, and KRW 3,905, KRW 218, KRW 11,451,87, KRW 198, KRW 198, KRW 198, KRW 34, July 15, 1998, KRW 34,05, KRW 305, Nov. 30, 201, KRW 198, KRW 198, KRW 1998.

The defendant asserts that the initial date of additional dues should be the date of revision of the former Income Tax Act by applying subparagraph 5 of the same Article. However, each of the above refunds is not caused by the above decision of unconstitutionality and the amendment of the former Income Tax Act, but caused by the second decision of correction of the head of Yongsan Tax Office after the decision of unconstitutionality. Thus, the defendant's above assertion is without merit.

In addition, according to the interest rate on the additional payment of national taxes, Article 30(2) of the Enforcement Decree of the Framework Act on National Taxes provides that "not later than one day for 100 won" shall be revised to "interest rate prescribed by the Ordinance of the Ministry of Finance and Economy, taking into account the average interest rate on fixed deposits with a maturity of 17036 on December 29, 200 (Provided, That this shall enter into force from April 1, 2001 to April 1, 200), and Article 13-2 of the Enforcement Rule of the Framework Act on National Taxes newly established on March 31, 201 shall be the interest rate of 30/10 from the following day after 10,000 to 20/100 of the average interest rate on fixed deposits with a head office of 30/100,000 from the following day after 20/100,000 of the National Tax Service as 30/100 of the additional payment of national taxes from 20.14.

3) Accordingly, the calculation of additional dues on each global income tax for the refund of this case for the year 197 and year 1998 is as follows. It is apparent that the sum of the amounts is KRW 112,143,881 (=70,371,693 + 41,772,188).

A) The aggregate of additional dues on global income tax of KRW 146,920,750 for the amount paid in excess of 146,97: KRW 70,371,693 (i) + ② Amount of KRW 17,536,660 + Amount of KRW 17,536,660 + ③ Amount of KRW 16,92,937 + ④ Amount of KRW 4,610,785 + Amount of KRW 1,861,161)

(1) Additional dues on 32,370,150 won [the amount obtained by deducting the plaintiff's tax amount of 5,042,010 won according to the second decision of correction from 68,256,318, in accordance with the purport of the proviso to Article 52 subparagraph 1 of the Framework Act on National Taxes] x 63,214,300 won x 1,035 days (from 1,035 days to March 31, 201), x 3/1000 + 30,000 + 370 days (from 1, 2002 to 31, 204), x 360 days (from 1, 205 to 304, 201) x 360 days (from 1, 204) x 370 days (from 1, 2001 to 1, 204) x 36/1636/ 1606 days;

(2) Additional dues on 34,266,683 won paid on June 1, 1998 x 17,536,660 won x [34,266,683 won x 1,034 days (from June 2, 1998 to March 31, 2001) x 3/10,000 + 370 days (from April 1, 2001 to April 5, 2002) x 16/100,00 + 361 days (from April 6, 2002 to April 1, 2003) x 13/10,0000 x 562 days (from March 1, 2003 to April 1, 200) x 100 x 105/2014; 201/4. 2014]

(3) Additional dues on 34,083,354 won paid on July 15, 1998 x 16,992,937 won [=34,083,354 won x 990 days (from July 16, 1998 to March 31, 2001) x 3/10,000 + 370 days (from April 1, 2001 to April 5, 2002) x 16/100,000 + 361 days (from April 6, 2002 to April 1, 2003) x 13/10,0000 x 562 days (from March 1, 2003 to April 1, 200) x 100 x 105/2014; 201/4. 2014]

(4) Additional dues on 3,905,218 won paid on April 28, 199 x 3,905,785 won x [3,905,218 won x 703 days (from April 29, 1999 to March 31, 2001) x 3,10,000 + 370 days (from April 1, 2001 to April 5, 2002) x 16/100,000 + 361 days (from April 6, 2002 to April 1, 2003) x 13/100,000 x 562 days (from April 1, 2003 to April 1, 200) x 100 x 501/4100 x 105 x 2014. 2014

(5) Additional dues on 11,451,187 won and additional dues on 11,861,161 won and additional dues on November 30, 2001 】 [1,451,187 won + 126 days (from December 1, 2001 to April 5, 2002) 】 16/100,000 + 361 days (from April 6, 2002 to April 1, 2003) 】 13/100,000 + 562 days (from April 2, 2003 to October 14, 2004) 】 12/10,0000 + 280 days (from April 14, 2003 to April 14, 200) 】 280 days ( October 10, 201 to 105/105);

B) Additional dues on global income tax amounting to KRW 115,924,787: 41,772,188 (=amounting to KRW 29,608,734 + ② Amounting to KRW 9,061,522 + Amounting to KRW 3,101,932)

(1) Additional dues on the amount of tax payable on May 31, 199 (the amount obtained by deducting the Plaintiff’s tax amount of 5,138,763 won according to the second decision of correction from 78,68,045 won to the purport of the proviso to Article 52 subparagraph 1 of the Framework Act on National Taxes) 73,549,282 won to be refunded, among the amount of tax filed and paid on May 31, 1999 (the amount computed by deducting the Plaintiff’s tax amount of 5,138,763 won from the amount of tax paid on May 31, 1999) 29,608,734 won [73,549,282] x 670 days (from June 1, 1999 to March 31, 201) 】 3/1000 + 370 days (from April 1, 2002 to 5) x 16/ 3601/ 206001.4

② Additional dues on KRW 9,061,52 for the amount of tax paid on July 15, 1999 / [25 days (from July 16, 1999 to March 31, 2001) 】 3/10,000 + 370 days (from April 1, 2001 to April 5, 2002) x 16/100,00 + 361 days (from April 6, 2002 to April 1, 2003) 】 13/100,000 x 361 days (from April 1, 2003 to April 1, 200), x 13/100,000 x 562 days (from March 1, 201 to 205) x 10/4100 x 2014/2014

(3) Additional dues on 19,085,295 won and additional dues on 19,101,932 won and additional dues on November 30, 2001 x [126 days (from December 1, 2001 to April 5, 2002) x 16/100,000 + 361 days (from April 6, 2002 to April 1, 2003) x 13/100,000 + 562 days (from April 2, 2003 to October 14, 2004) x 12/10,0000 + 280 days (from April 2, 2003 to April 14, 2004) x 20 days (round 10/1005/7, 105/105) x 105/1005) ;

(D) Thus, the defendant is obligated to pay to the plaintiff 374,989,418 won (262,845,537 won for additional dues + 112,143,881 won for additional dues) and damages for delay calculated at a rate of 20% per annum under the Civil Act from August 12, 2005 to July 18, 2007, when it is obvious that the delivery date of a copy of the complaint of this case is the day following the second decision of correction as requested by the plaintiff, which is the day following the second decision of correction.

(2) Judgment on the defendant's assertion

(A) Determination as to the assertion on the expiration of extinctive prescription

On the other hand, the defendant asserts that since Article 52 subparagraph 1 of the Framework Act on National Taxes provides the initial date of additional dues as the day following the payment date, the initial date of extinctive prescription on the claim for refund of national taxes should be the day following the day of each payment date, the above claim for refund and additional dues has expired after the expiration

The five-year extinctive prescription period under Article 54 of the Framework Act on National Taxes is applicable to the above refund and additional refund. The taxpayer's right to claim the refund of national tax with respect to the excess amount becomes final and conclusive at the time when all or part of the tax liability is extinguished by the revocation or correction of the return or disposition (see Supreme Court en banc Decision 88Nu6436, Jun. 15, 1989). Thus, the time when the refund of national tax under Article 54 (1) of the Framework Act on National Taxes and the refund of national tax can be exercised by law can be deemed to be the time when the return or corrective disposition is made with respect to the excess amount. Accordingly, the extinctive prescription period of the Plaintiff's right to claim the refund and additional refund of national tax should be calculated from the date when the confirmation of tax liability by the Plaintiff's initial return act was revoked by the second decision of correction. However, since the Plaintiff's claim for the refund of national tax with respect to the above excess amount was clearly stated in the Plaintiff's decision of correction of global income tax amount for 20 years prior to the above 20.

(B) Determination on the assertion of violation of the good faith principle

The defendant claimed that the plaintiff's excessive payment was deducted as already paid tax amount in determining the tax amount against the non-party, and thus, the non-party's tax amount was imposed less than that of the non-party. Thus, since the plaintiff's husband and wife did not have any damage as the plaintiff's husband and wife, the plaintiff's husband and wife did not faithfully pay the comprehensive income tax, and the non-party's revenue amount omitted as a result of the tax investigation by the National Tax Service was discovered as a result of the non-party's failure to return and pay it, thereby causing the correction of the above decision of correction. Although the above circumstances were well known, it would not be possible to notify the non-party of the disposition of imposition of national tax after the expiration of the exclusion period of the national tax imposition right. Thus, the plaintiff's lawsuit of this case seeking a refund cannot

However, the above circumstance alone does not allow the plaintiff to exercise the right to claim the national tax under Article 51 of the Framework Act on National Taxes to be against the good faith or to be an abuse of right, and there is no other evidence to acknowledge it.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judge Lee Jin-ho (Presiding Judge)