Cho High Court Decision 201Do3568 ( December 28, 2011)

As long as the imposition of revaluation tax is revoked and refunded, there is an obligation to add a refund of revaluation tax to the refund refund tax from the next day after the payment thereof.

As long as the imposition of revaluation tax is revoked and refunded, there is an obligation to add a refund of revaluation tax to the refund refund tax from the next day after the payment thereof.

Article 52 of the Framework Act on National Taxes

2012Guhap4227 The revocation of revocation of additional dues on refund

XX Co., Ltd

Head of Geumcheon Tax Office

April 20, 2012

May 25, 2012

1. The Defendant’s disposition of refunding KRW 000 to the Plaintiff on July 1, 201 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff, which was established on July 19, 1973 and operated an educational publishing cultural business, book learning site wholesale business, retail business, etc., conducted asset revaluation on the premise that the Plaintiff listed shares pursuant to Article 56-2 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4285 of Dec. 31, 1990; hereinafter referred to as the “Regulation of Tax Reduction and Exemption Act”) on January 1, 1990.

B. On March 28, 1990, the Defendant imposed the Plaintiff a revaluation tax of KRW 000 on the revaluation rate of KRW 000 (hereinafter referred to as “taxation disposition for revaluation tax”) and the Plaintiff paid it around that time.

C. Although the listing period of stocks has been finally extended on December 31, 2003, the Plaintiff did not list stocks until December 31, 2003, as the relevant laws and regulations, such as the Regulation of Tax Reduction and Exemption and the Enforcement Decree thereof, which stipulate special cases for corporate re-evaluation, were amended several times.

D. Accordingly, on January 17, 2004, the Defendant paid 00 won for the refund of national tax corresponding to the amount of revaluation tax paid by the Plaintiff and 000 won for additional refund (hereinafter “the first refund refund”) calculated from the date following the date of payment of the amount of revaluation tax in addition to the above refund of national tax in accordance with Article 23(1) of the Addenda of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 4285, Dec. 31, 1990) and Article 138 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17538, Mar. 2, 2002).

E. However, on March 22, 2006, the Ministry of Finance and Economy expressed its view that the full amount of the first additional dues should be recovered as the tax policy-363 of the Ministry of Finance and Economy’s established rules, and on May 18, 2006, the Defendant notified the Plaintiff to pay KRW 000 of the asset revaluation tax pursuant to Article 51(7) of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006; hereinafter “former Framework Act on National Taxes”) in order to collect the first additional dues on May 18, 2006 (hereinafter “the first additional refund disposition”), and the Plaintiff paid it to the Defendant on June 1, 2006.

F. Meanwhile, Supreme Court Decision 2009Du4074 Decided May 26, 201 rendered a judgment that "as long as a revaluation tax was refunded after cancelling the imposition disposition and paying the refund tax, the duty to add a surcharge to the refund of the refund tax shall be imposed." On June 13, 201, the head of Seoul Regional Tax Office notified the Defendant of the above refund amount of KRW 000 of the refund refund. Accordingly, on June 27, 2011, the Defendant issued an ex officio corrective disposition to revoke the first refund disposition to the Plaintiff, and on the same day, paid KRW 00 and KRW 00 for the refund refund (hereinafter referred to as "second refund refund") to the Plaintiff.

G. On July 1, 2011, the Defendant issued a refund disposition that notifies the Plaintiff that the second additional refund should be paid KRW 000 of revaluation tax pursuant to Article 51(8) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201; hereinafter “Framework Act on National Taxes”) on the ground that there is no provision on the grounds that the second additional refund is not a basis for payment (hereinafter “instant refund disposition”).

H. The Plaintiff appealed and filed an appeal with the Tax Tribunal on September 30, 201, but the Tax Tribunal dismissed the Plaintiff’s claim on December 28, 2011.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 2 and 3-1, Gap evidence Nos. 4, Gap evidence Nos. 5-1, the purport of the whole pleadings

2. Whether the return disposition of this case is legitimate

A. The parties' assertion

1) The plaintiff's assertion

The first additional refund does not correspond to "national taxes, additional dues, or expenses for disposition on default, which are overpaid or erroneously paid under Article 51 (1) of the Framework Act on National Taxes." However, the first additional refund on the refund of national taxes has characteristics similar to national taxes, ② the Defendant also deemed as corresponding to the first additional refund on national taxes, and thus refund them to the Plaintiff by applying the former part of Article 51 (1) of the Framework Act

In light of the fact that both the refund of additional dues on the refund of national tax and the refund of additional dues on the refund of national tax are unjust enrichment and that there is no reasonable ground to treat the two differently in adding additional dues on the legal interest holder, it is necessary to apply mutatis mutandis the provision of Article 52 of the Framework Act on National Taxes applied at the time of national tax refund even in cases where additional dues are refunded. Thus, the disposition of refund of this case

2) The defendant's assertion

The provisions of Article 52 of the Framework Act on National Taxes that stipulate the additional payment on the refund of unjust enrichment are special provisions on Article 748 of the Civil Act, and Article 52 of the Framework Act on National Taxes provides that additional payment on the refund of national taxes should be paid in cases where the refund of national tax is paid, and Article 51 of the Framework Act on National Taxes defines national tax refund as "tax refund overpaid or erroneously paid out of the amount paid as national tax, additional dues and disposition fee for arrears," and excludes additional payment on the refund of national

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

In full view of the purport of the evidence Nos. 3-1 and 2, the defendant issued each tax notice stating "00 won", "property revaluation tax" in the tax item column, "00 won in the additional dues", and "00 won" in the increased additional dues column, when he issued each tax notice to the plaintiff on May 18, 2006.

In light of the following circumstances revealed by the language and text of the provisions of Articles 2, 51, and 52 of the Framework Act on National Taxes and the purport of the entire pleadings, it is reasonable to view that the first additional refund disposition by the Plaintiff, which was paid to the Defendant on June 1, 2006, constitutes a “national tax” under Article 51(1) of the National Tax Service Act, and even if it cannot be seen as a national tax, Article 52 of the Framework Act on National Taxes, which applies at the time when the tax authority pays a national tax refund, applies to a case where the additional refund is returned again by the tax authority. Therefore, the Plaintiff’s above assertion pointing this out is with merit. Accordingly, the Defendant’s disposition of return

1) In applying the provisions of Article 51(7) of the former Framework Act on National Taxes (in cases where the director of a tax office claims the return of the amount already appropriated or paid as a result of the cancellation of the determination of national tax refund, the provisions of the National Tax Collection Act shall apply mutatis mutandis to the notification, demand and disposition for the return of the first additional dues to the Plaintiff on May 18, 2006, so long as the Defendant imposed a disposition on the Plaintiff by setting the tax item as a "property revaluation tax" even if the substance of the amount paid as a result of the above return disposition is an additional refund, it constitutes a "national tax" which is a "tax imposed by the country" under Article

2) Article 2 subparag. 5 of the Framework Act on National Taxes provides that "where national taxes are not paid by the due date, it refers to the amount to be collected in addition to the notified amount pursuant to the National Tax Collection Act and the amount to be collected in addition to the amount to be collected if the national taxes are not paid by the due date after the due date." As seen earlier, on May 18, 2006, the Defendant notified the Plaintiff of the payment of additional 00 won and increased additional 00 won, while imposing the refund of the next refund additional dues, and the Defendant also issued the first disposition to refund additional dues on the premise that the amount to be paid by the Plaintiff is "national taxes."

3) The national tax refund constitutes unjust enrichment received or held by the State without any legal cause even though the tax liability existed from the beginning or ceased to exist, and the additional dues have the nature of statutory interest as statutory interest on such unjust enrichment (see Supreme Court Decision 2009Da11808, Sept. 10, 2009). If a debtor delays the performance of the interest accrued, he/she may claim damages for delay of interest (see Supreme Court Decision 96Da25302, Sept. 20, 1996). Even if the national tax refund is not “national tax” due to the repayment of the first additional refund, when the national tax refund is appropriated or paid pursuant to Article 51 of the Framework Act on National Taxes, the tax authority may not apply to any other reasonable interpretation of the provisions of Article 52 of the Framework Act on National Taxes without delay to the creditor without any reasonable ground compared to the repayment of interest accrued from the initial date of calculation or the date of payment decision to the date of payment decision.

4) Although there is no express provision that the additional dues on refund collected under the relevant Acts and subordinate statutes, such as the Framework Act on National Taxes, should be paid again, in full view of the fact that there is no reasonable ground to distinguish the amount of refund and the additional dues on refund collected, in that the amount of refund collected or held by the State is returned, and that the additional dues on refund collected are not separate from the refund (see Supreme Court Decision 2001Da60767, Jan. 11, 2002). The fact that the additional dues on refund collected cannot be paid on the sole basis of the fact that there is no express provision in the relevant Acts only with regard to the refund collected, is extremely unfair.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.