[2] The case holding that, in the case of taxation disposition by the tax office, where the taxpayer had failed to deduct the development charges as necessary expenses when filing a final tax base return and omitted them from necessary expenses, the defect in the taxation disposition is serious, but it is not obvious that the defect in the taxation disposition is not apparent, and thus, it cannot be deemed that

[2] The case holding that, in calculating business income under the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994), where the tax office imposed tax without deducting the development charges imposed on the housing construction project from the necessary expenses, there is a defect such as misunderstanding that there is income subject to taxation, notwithstanding the absence of income subject to taxation, and such defect is serious as to the taxation requirement itself; however, the above defect is revealed only because the taxpayer omitted the development charges from the necessary expenses in the final return of tax base and the tax office did not know of the imposition or amount of the development charges to be included in the necessary expenses, and it can only be seen that the legal relation or factual relations should be accurately investigated, and it cannot be deemed that the defect is apparent.

2. The costs of appeal are assessed against the Plaintiffs.

Since the judgment of the court below is the same as the corresponding part of the judgment, it shall be quoted in accordance with Article 390 of the Civil Procedure Act

2. Determination as to the establishment of unjust enrichment

A. The plaintiffs' assertion

(1) Under the system that allows the tax authority to determine or correct taxable income and amount of tax in the imposition of global income tax, where it is evident that the tax already imposed has no taxable income as a result, the tax authority must, as a matter of course, take any corrective measures (such as cancellation of the taxation disposition, return of the amount equivalent to the portion of the tax to the taxpayer if the tax was already collected, etc.) against it, and take such corrective measures, and the tax authority is legally expected and demanded to take it. Although it is objectively obvious that there is no reason for taxation, and there is no reasonable need to withhold such recognition decision, it is remarkably unfair for the tax authority to have the taxpayer bear the tax payment based on the taxation disposition by failing to take such corrective measures and goes against the principle of justice and fairness. Thus, even if there is no corrective measure by the tax authority, the tax authority or the State may not claim the validity of the taxation disposition against the taxpayer, and therefore, it is not possible to collect the tax as well as the tax already collected from the above taxation disposition, and it must be returned to the payer as a legal benefit.

(2)However, the development charges imposed on the above housing construction project should be naturally deducted from the total revenue amount of 18,387,912,384 won by the plaintiffs' housing construction project, and even if the plaintiffs raised a suit for revocation because they were dissatisfied with the methods and amount of the development charges imposed on them at the time, they did not deduct them as necessary expenses in the course of calculating the income amount reverted to the year 193.

(3)Therefore, the amount of development charges for which a subsequent disposition has become final and conclusive shall be deducted from 18,387,912,384 won of the total income from the above housing construction project, and the amount of income subject to taxation calculated according to the respective equity ratio of the plaintiffs, including other income and other income, and the amount of income subject to taxation which has completed various income deductions, are as listed in attached Table 7 of the judgment below. Thus, the defendant is liable to return the amount equivalent to the global income tax already paid to the plaintiff A, B, and D who has no taxable income, as the amount of the global income tax was 2,456,654 won around May 1994, the amount of the taxable income was 2,456,65 won, and the global income tax was 35,665 won, and the subsequent amount was 24,427,345 won after deducting the above amount from 24,463,010 won (24,463,010 won-65 won).

(b) Markets:

(1)일반적으로 조세의 과오납이 부당이득이 되기 위하여는 납세 또는 조세의 징수가 실체법적으로나 절차법적으로 전혀 법률상의 근거가 없거나 과세처분의 하자가 중대하고 명백하여 당연무효이어야 하고, 과세처분의 하자가 단지 취소할 수 있는 정도에 불과할 때에는 과세관청이 이를 스스로 취소하거나 항고소송절차에 의하여 취소되지 않는 한 그로 인한 조세의 납부가 부당이득이 된다고 할 수 없으며( 대법원 1994. 11. 11. 선고 94다28000 판결 등 참조；따라서 과세원인이 없음이 객관적으로 명백하고, 또 과세관청에게 그와 같은 인정판단을 유보할 합리적 필요성이 인정되지 않는 경우임에도 과세관청 자신에 의한 시정조치가 취해지지 않는다면 과세관청 또는 국가는 납세자에 대하여 당해 과세처분의 효력을 주장할 수 없고 이미 징수된 것은 부당이득에 해당된다는 원고들의 위 주장은 위와 같은 법리에 비추어 받아들이기 어렵다.), 행정처분에 존재하는 하자가 중대하다고 하더라도 외형상 객관적으로 명백하지 않다면 그 처분을 당연무효라고 할 수 없는 것인바, 행정청이 행정처분의 대상이 되는 법률관계나 사실관계가 전혀 없는 사람에게 행정처분을 한 때에는 그 하자가 중대하고도 명백하다 할 것이나, 행정처분의 대상이 되지 아니하는 어떤 법률관계나 사실관계에 대하여 이를 처분의 대상이 되는 것으로 오인할 만한 객관적인 사정이 있는 경우로서 그것이 처분대상이 되는지의 여부가 그 사실관계를 정확히 조사하여야 비로소 밝혀질 수 있는 때에는 비록 이를 오인한 하자가 중대하다고 할지라도 외관상 명백하다고 할 수 없다( 대법원 1997. 5. 9. 선고 95다46722 판결 , 1990. 11. 27. 선고 90다카10862 판결 등 참조).

In addition, Article 20 (2) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) provides that "the business income amount shall be the amount obtained by deducting the necessary expenses from the total income amount in the current year." Article 31 (1) of the same Act provides that "the necessary expenses to be included in the necessary expenses in the calculation of real estate income amount, business income amount, other income amount, transfer income amount, or forest income amount shall be the total expenses corresponding to the total income amount in the current year." Here, the necessary expenses refer to the expenses used or consumed for the purpose of earning the total income amount, and it shall be the expenses used or consumed for the purpose of calculating the necessary expenses (Calculation of transfer income) and Article 45 (1) 2 of the former Income Tax Act (amended by Presidential Decree No. 1456 of Dec. 31, 1994) and Article 94 (2) 4 of the former Enforcement Decree of the same Act (amended by Ordinance of the Prime Minister of the Prime Minister of May 305, 19).

(2) According to the above evidence and Gap evidence Nos. 10-6, the development charges imposed on the plaintiffs at the time of the instant taxation disposition, which were not deducted from the business revenue amount of the plaintiffs, are acknowledged as necessary expenses. Thus, if the plaintiffs' total revenue amount of KRW 18,387,912,384 is deducted from the plaintiffs' total revenue amount of KRW 367,226,830, which the plaintiffs claimed as necessary expenses, the plaintiff A, B, and D did not have income subject to taxation as stated in the attached Table 7 of the judgment of the court below, and the plaintiff C did not have income subject to taxation amounting to KRW 2,456,65, and its global income tax amount was exceeded KRW 35,665,00,000. Thus, it can be seen that there is a defect such as misconception that there was income subject to taxation, even though there is no income subject to taxation in the instant taxation disposition, and that defect can be seen as serious from the facts itself due to the defect in the above taxation requirement or the amount of the development charges.

Therefore, the instant taxation disposition cannot be deemed as null and void, notwithstanding the above defects. Therefore, it cannot be deemed that the relevant tax amount paid by the Plaintiffs based on the instant taxation disposition does not have any legal ground.

3. Conclusion

Therefore, the plaintiffs' claims of this case under the premise that the amount of the tax paid by the plaintiffs based on the taxation of this case is not legally reasonable, shall be dismissed. The judgment of the court below is just in its conclusion, and the plaintiffs' appeal is without merit, and it is so decided as per Disposition.

Judges Park Jae-il (Presiding Judge)