Seoul Northern District Court 2014Gadan43943 ( October 015, 2015)

Requirements for the invalidation of a disposition of taxation, which is a fact requiring the return of unjust enrichment

In light of the fact that the circumstance where the name was stolen or the name was borrowed is a matter that can only be disclosed only when the facts should be accurately examined, it cannot be deemed that the defect is objectively obvious and void, even if there is a defect.

2015Na32491 Return of Unjust Enrichment

The AA

Korea

February 5, 2016

February 19, 2016

1. The plaintiff's appeal and the conjunctive claim added in the trial are all dismissed.

2. The costs of the lawsuit after the appeal shall be borne by the Plaintiff.

the Gu Office's place of service and place of service

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 42,131,660 won with 20% interest per annum from the next day of the delivery of a copy of the complaint of this case to the day of complete payment (the plaintiff sought unjust enrichment against the value-added tax originally paid by the plaintiff, while adding the plaintiff's claim for return of unjust enrichment against the global income tax additionally paid by the plaintiff in the first instance.).

1. Basic facts

A. The plaintiff is a person who has been engaged in the clothing manufacturing business for a long time under the trade name of **, and KimB is a person who has served as a head in the above clothing manufacturing enterprise operated by the plaintiff.

B. On October 13, 2011, the Plaintiff concluded a lease contract of KRW 20,000,000, monthly rent of KRW 22,200,000 (including additional tax) with the lessor's mainCC (YD) with respect to the building on the ground of YY 2, 200,000, which KimB wanted to operate a factory, in the name of the Plaintiff, and consented to the KimB to use the trade name ****.

C. KimB requested the tax accountant EE to undertake the business registration with the trade name ***, the representative as the plaintiff, along with the above lease contract.

D. Accordingly, on March 13, 2012, an employee ParkF of the Anti-E filed an application for registration with the director of the tax office of Dongdaemun-gu as business "***, the representative, the location of the Plaintiff, the business place, the business type x, and the type of business "business type x" with the business registration as the representative of the Plaintiff (hereinafter referred to as the "business place of this case").

E. The head of Dongdaemun-gu Tax Office imposed and notified the Plaintiff of value-added tax amounting to KRW 23,953,700 for the payment period on September 30, 2012; KRW 11,831,000 for the second period of value-added tax in November 9, 2012; and KRW 1,174,210 for the second period of value-added tax in March 31, 2013, the payment period of which was March 31, 2012 (hereinafter collectively referred to as “instant disposition”).

F. From February 28, 2013 to September 13, 2013, according to the instant disposition, the Plaintiff paid KRW 42,131,660 in total as value-added tax and its additional charges.

G. Upon the imposition of value-added tax on the Plaintiff, the Plaintiff reported the instant place of business on October 31, 2012, and filed a complaint against KimB with the charge of forging a business registration application, and KimB, at the investigation agency, the Plaintiff stated that “the Plaintiff was permitted to issue a business registration by telephone, and the amount to be received from the business partner was also known to the Plaintiff while operating the business, and the Plaintiff was aware of it,” and the Plaintiff’s statement that “the Plaintiff did not permit the business registration under the name of the Plaintiff while making a telephone call.” However, the Seoul Northern District Prosecutor’s Office prosecuted KimB on September 12, 2014 as KimB was missing.”

H. In addition, the Plaintiff submitted a civil petition for grievance to the Seodaemun Tax Office on June 17, 2013. However, around July 15, 2013, the head of the Dongdaemun-gu District Tax Office submitted a civil petition for grievance to the Anti-Corruption and Civil Rights Commission for notification that it is difficult to accept the Plaintiff’s civil petition as a result of deliberation by the Taxpayer’s Rights and Interests Respect Committee. On November 11, 2013, the Anti-Corruption and Civil Rights Commission recommended the Plaintiff to the head of the Dongdaemun-gu Tax Office to the effect that the instant disposition is not an actual business entity. As such, the head of the Dongdaemun-gu Tax Office sent a reply that the KimB confirmed as a actual business entity’s business registration certificate and that the relevant global income tax was derived from KimB.

I. On January 2, 2015, the head of the Dongdaemun-gu District Tax Office: (a) deemed the actual business operator of the instant workplace as KimB for the global income tax for the year 2012; (b) revised the amount of KRW 420,00,00 after deducting KRW 425,826,235 from the amount of the Plaintiff’s initial return at KRW 845,826,235 from the amount of the Plaintiff’s initial return at the instant workplace; and (c) notified the correction of the amount of the initial return at the instant workplace as “0 won” (as a result, the total amount of the income reduced, but the increase in the amount of the tax base, resulting in the increase in the amount of the additional notification tax amount of KRW 6,68,413).

Facts without any dispute arising in recognition, Gap's 1 through 3, 8 through 14, 17 through 21 (including various numbers), Eul's 1 through 4, Eul's testimony of anti-reination of witness at the trial, and the purport of the whole pleadings.

2. Determination

A. The plaintiff's assertion

1) The instant business establishment is registered as a business operator by taking advantage of the Plaintiff’s name, and such circumstance is confirmed by each investigation agency or the Anti-Corruption and Civil Rights Commission; KimB also did not carry out a business that may arise from taxation data; the same is a kind of commitment or opinion explanation on the instant disposition due to correction of the instant disposition in the East-gu Tax Office; thus, the period for filing a lawsuit against the instant disposition is set; and even if the instant disposition was revoked in relation to the instant business establishment, the failure to revoke the instant disposition goes against the principle of trust protection is significant and apparent. Accordingly, the instant disposition is deemed null and void. Accordingly, the amount of tax payable based on the instant disposition falls under unjust enrichment because there is no legal ground.

2) Upon the recommendation of the Anti-Corruption and Civil Rights Commission, the Defendant revoked the instant disposition ex officio and unfairly appropriated the value-added tax paid by the Plaintiff to the value-added tax against KimB. Accordingly, the Defendant must return the value-added tax paid by the Plaintiff.

3) Even if the Defendant’s revocation ex officio of the instant disposition and the Plaintiff did not appropriate the value-added tax paid on KimB, it is unreasonable to impose the value-added tax on the Plaintiff at an amount of KRW 6,68,413, while changing the name of the business operator to KimB according to the recommendation of the Anti-Corruption and Civil Rights Commission (the Anti-Corruption and Civil Rights Commission) and cancelling the instant disposition; rather, when calculating the comprehensive income tax, it would obviously go against the good faith principle to exclude the instant place of business from the instant place of business. Therefore, the Defendant should return the global income tax of KRW 6,683,413, which the Plaintiff additionally paid to the Plaintiff (the Plaintiff’s claim for return of value-added tax of KRW 42,131,6

B. Determination on the assertion that the instant disposition is void as a matter of course

In order to become null and void a defective administrative disposition, the defect must be objectively obvious because it violates the important part of the laws and regulations, and it is necessary to examine the purpose, meaning, function, etc. of the laws and regulations from a teleological perspective, and to reasonably consider the unique nature of the specific case itself (see, e.g., Supreme Court en banc Decision 94Nu4615, Jul. 11, 1995). However, if a person who does not have any legal relations or factual relations subject to taxation at all, there is no objective reason to believe that it is subject to taxation, it is clear whether it is subject to taxation or not, in light of the above legal relations or factual relations that are not subject to taxation, and thus, it cannot be said that it is apparent that the Plaintiff’s business operator could not be deemed to have obtained permission from the above business operator under the name of the Plaintiff, and thus, it cannot be said that the Plaintiff’s business operator could be deemed to have obtained permission from the above business operator under the name of the Plaintiff’s name and thus, it cannot be deemed to have been objectively void a valid tax disposition based on the following grounds.

The plaintiff argues that KimB did not operate a business that may cause taxation data, or that the disposition of this case is corrected in the Seodaemun Island, thereby ordering the correction of the disposition of this case. However, according to the above basic facts, KimB appears to have been subject to the report of value-added tax while operating the business of this case, and there is no evidence that he issued the notification of the revocation of authority or the notification of opinion in the Seodaemun Island Island.

In addition, the Plaintiff asserts that the Defendant’s revocation of the instant disposition is contrary to the principle of trust protection even though it is against the principle of invalidation. However, the value-added tax is a tax imposed on each distribution phase based on the value-added tax that is created in all stages of production, provision, and distribution of goods or services, and ultimately the final consumer bears the burden. Since the Plaintiff’s delivery and receipt of tax invoices in accordance with the facts are strictly required, the Plaintiff’s return and payment of value-added tax is in principle different from the global income tax, which is a tax imposed on an individual’s income (excluding retirement income, capital gains, etc.) and the circumstances that corrected the global income tax after the correction of the tax amount cannot affect the apparentness of the instant disposition.

Therefore, the Plaintiff’s assertion based on the premise that the instant disposition is void as a matter of course is without merit.

C. Determination as to the Defendant’s assertion that the instant disposition was already revoked ex officio

The fact that the Defendant, upon the recommendation of the Anti-Corruption and Civil Rights Commission, corrected and registered the business operator of the instant workplace as KimB and issued a global income tax rectification disposition is as seen earlier. According to the evidence No. 13 (Certification Institute of Tax Payment), it can be acknowledged that KimB issued a document verifying that KimB paid the value-added tax. However, the response sent by the head of Dongdaemun-gu Tax Office to the Anti-Corruption and Civil Rights Commission is related to the correction of the business operator and global income tax, without any mentioning about the disposition of this case, and there is no document suggesting that the disposition of this case was subject to correction of value-added tax, unlike global income tax, and there is no document suggesting that the disposition of this case was issued as of October 7, 2014 on the date of issuance of the evidence No. 13 (No. 12) and the evidence No. 13 (No. 13) was still written on the Plaintiff’s resident registration number, and it is difficult to acknowledge that the Plaintiff already presented the disposition of this case under the premise that the Plaintiff’s registration was cancelled.

D. Determination on a claim for return of an amount equivalent to global income tax imposed additionally (preliminary claim)

In addition, the Plaintiff asserts that the Defendant’s revocation of the instant disposition and did not refund the value-added tax, while, in calculating the global income tax, the Plaintiff imposed the global income tax of KRW 6,68,413 for the year 2012 on the Plaintiff by excluding the portion of the instant place of business from the part of the instant place of business. As such, it is obviously unreasonable to impose the global income tax of KRW 6,6

In light of the above, the value-added tax, which is a tax imposed on added value created at the stage of producing, providing, and distributing goods or services, and the income tax, which is a tax imposed on individual income, is different from its nature. Under the circumstances where the Plaintiff initially filed a global income tax return with respect to the global income tax of KRW 6,668,413, which is more necessary expenses than the amount of income related to the instant place of business when the Plaintiff filed the global income tax return, the Defendant derived the global income tax data related to the instant place of business from KimB, which is the actual business operator, and eventually results from the exclusion of both the amount of income and necessary expenses related to the instant place of business in the process of calculating global income tax against the Plaintiff, and even if the said additional tax disposition violates the good faith principle, it cannot be deemed that the said additional tax disposition itself is not an act violating the good faith principle, and thus, even if the said additional tax disposition violates the good faith principle, the Plaintiff cannot immediately seek the return thereof without seeking the revocation of such additional tax disposition against the Defendant. Therefore, this part of the Plaintiff’s claim is without merit.

3. Conclusion

Therefore, all of the plaintiff's claim is dismissed because it is without merit. The judgment of the court of first instance which dismissed the plaintiff's claim for return of unjust enrichment equivalent to the value-added tax paid is just as it is concluded. Accordingly, the plaintiff's appeal and the claim for return of unjust enrichment equivalent to the global income tax added as preliminary in the trial are dismissed as it is without merit. It is so decided as