Hyundai Industrial Development Co., Ltd. (Attorney profit-type et al., Counsel for the defendant-appellant)

Samsung Head of Samsung Tax Office

March 27, 2012

1. The instant lawsuit shall be dismissed.

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

Defendant on June 8, 2011)

The defendant's rejection of a request for reduction or correction against the plaintiff shall be revoked of the duty payment notice of value-added tax of KRW 5,173,101,830 for the first term of January 2010 against the non-party corporation, and a disposition of refusal to refund KRW 10,832,886,638 shall be revoked.

1. Details of the disposition;

A. On April 25, 2006, the Plaintiff was awarded a contract with Nonparty 1 Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”) for the construction of the construction of the building of the building of the building of the building of the building of the building of the building of the building of the building of the building of the building of the building of the building of the building of the building of the building of the building of the building of the building of the building of the building of

B. On March 30, 2010, the Plaintiff prepared and issued a tax invoice for KRW 108,618,508,847, which is part of the construction cost (for the provision of the above construction work) to the non-party company (hereinafter “instant tax invoice”), and paid the value-added tax of KRW 10,861,850,886.

C. Since then, on April 26, 2006, the Plaintiff filed an attachment and assignment order with respect to the right to claim the refund of KRW 10,861,850,886 (hereinafter “the refund claim in this case”) with the Seoul Central District Court (No. 2010,618,508,847) based on the original copy of the promissorysory note amounting to KRW 305,070,192,000 issued and delivered by the non-party company to the Plaintiff on April 26, 2006, with respect to the payment of the value-added tax of KRW 10,861,850,886 (hereinafter “the refund claim in this case”), and on April 26, 2010, the attachment and assignment order for the refund claim in this case was issued by the above court on April 26, 2010 (hereinafter “the assignment order in this case”). The above order became final and conclusive to the debtor in the Republic of Korea.

D. Meanwhile, on June 11, 2010, the Plaintiff, the non-party company, and the Korea Asset Trust Co., Ltd. (hereinafter “Korea Asset Trust”) concluded a disposal trust agreement with the non-party company as the truster, the trustee of the Korea Asset Trust, and the Plaintiff as the priority beneficiary (hereinafter “instant trust”). Accordingly, on the 16th day of the same month, on the apartment of the above 661 household (hereinafter “instant trust”), the Ulsan District Court’s registry office was 45137.

E. The non-party company filed a return on the amount of input tax to be refunded when it initially declared the value-added tax of 10,205,133,205 (hereinafter “amount of refund”) in 2010. However, the non-party company issued a tax invoice on August 11, 2010 to additionally pay KRW 18,193,81,691, which is the value-added tax base for the portion of the building among the real estate held in the instant case, on the ground that the trust in this case supplied the real estate held in the instant case to the Plaintiff, who is the priority beneficiary, and thus constitutes a “supply of goods” subject to value-added tax, and thus, did not pay the amount of tax accordingly.

F. As a result of the on-site verification of value-added tax refund for the non-party company, the Defendant issued a revised and notified the non-party company on November 1, 2010 to pay value-added tax (including additional tax) 5,173,101,830 won according to the revised return of this case after deducting the sales tax invoice issued by the non-party company from the refundable tax amount and recalculated the erroneous part of the details of the revised return, which was subject to the application of the tax base and the additional tax due diligence from the revised return (the above duty payment notice is combined with the collection order issued by the non-party company by the revised return of this case, and the imposition and collection disposition of the increased additional tax due to the failure

G. On February 10, 201, the Plaintiff is the entire creditor of the claim for refund of this case pursuant to the instant assignment order. The Plaintiff is likely to extinguish the claim for refund of this case due to a non-party company’s unfair revised declaration and its illegal disposition based thereon, and thus, it is likely that the claim for refund of refund of this case may be extinguished. Accordingly, on June 8, 2011, the Plaintiff filed a claim for correction pursuant to Article 45-2(1) of the Framework Act on National Taxes (hereinafter “the Act”) with respect to the Defendant on behalf of the non-party company, on behalf of the obligee, for the preservation of the claim for the construction cost against the non-party company by a third party or the Plaintiff’s sub-party company, which is legally interested in claiming for correction (the Plaintiff has a claim for construction cost equivalent to the above amount against the non-party company). However, on June 8, 2011, the Defendant rejected the Plaintiff’s claim for correction on the ground that the Plaintiff did not constitute the Plaintiff’s claim for correction by the statutory due date.

H. On July 5, 201, the Plaintiff dissatisfied with the instant refusal disposition, filed an appeal with the Tax Tribunal on July 5, 201, but on December 22, 2011, the Tax Tribunal rejected the Plaintiff’s appeal on the ground that the Plaintiff was not a legitimate claimant entitled to file the instant request for correction.

[Ground of recognition] Facts without dispute, Gap 1 through 9 evidence, Gap 11 evidence, Eul 1, 2 and 4 evidence (including each number), the purport of the whole pleadings

2. The plaintiff's assertion

The trust of this case is merely to secure all claims, such as the construction cost claim against the non-party company, which is the first beneficiary, and cannot be deemed to have transferred the ownership or right to dispose of the real estate of this case to the plaintiff. Thus, although the non-party company did not constitute the "supply of goods" as the object of value-added tax, the non-party company filed a revised return of this case on the premise that the real estate of this case was supplied to the plaintiff, and the defendant made the disposition of this case on the basis of the unfair revised return was significant, apparent

As such, the Plaintiff may lose the entire amount of the claim for refund of this case (hereinafter “the entire amount of the claim for refund of this case”) equivalent to the amount of the claim for refund of this case which was acquired through the instant order due to such unlawful disposition, it is reasonable to deem that the Plaintiff is entitled to exercise the right to demand rectification under Article 45-2(1) of the Act on behalf of the non-party company, who is insolvent, in order to preserve the claim for construction price and the claim for indemnity against the non-party company in 179,202,517,094, such as the claim for construction price and the claim for indemnity against the non-party company. Furthermore, in light of the fact that the Plaintiff is unable to exercise the claim for the entire amount of the instant case due to the revised return of this case by the non-party company, it is more necessary to allow the exercise of the right to request rectification as a creditor who is legally and directly interested in the right to request the correction of subrogation,

Therefore, the rejection disposition of this case, which rejected the plaintiff's request for correction on the ground that the plaintiff's request for correction under Article 45-2 (1) of the Act does not constitute "the person who filed a return of tax base by the statutory deadline for return", is unlawful

3. Determination on this safety defense

A. The defendant's main defense

Article 45-2 (1) of the Act does not apply to a person entitled to a request for correction as stipulated under Article 45-2 (1) of the Act, and even if the Plaintiff is merely a monetary claimant against the non-party company who is liable for tax payment, it is merely an indirect and indirect interest and does not constitute a person who has a direct interest in law. Thus, the Plaintiff cannot exercise the right to a request for correction under Article 45-2 (1) of the Act directly or by subrogation of the non-party company. Therefore, the Plaintiff’s return of the request for correction of this case does not constitute “a person whose rights or interests are infringed due to an illegal or unreasonable disposition or a lack of necessary disposition” or “interested person who is in violation of rights or interests by a disposition under this Act or other tax-related Acts,” and thus, the lawsuit of this case is unlawful.

B. Relevant statutes

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

C. Determination

(1) Contents, etc. of requests for correction stipulated in Article 45(1) of the Act

Article 45-2 (1) of the Act provides that where the tax base and amount of tax recorded in the tax base return exceeds those to be reported under the tax-related Acts ( subparagraph 1), or the deficiencies or amount of tax recorded in the tax base return falls short of the deficit or amount of tax to be reported under the tax-related Acts ( subparagraph 2), a person who has filed the tax base return by the statutory due date of return may request the head of the competent tax office to determine or correct the tax base and amount of the national tax for which the initial return and revised return have been filed, within three years after the statutory due date of return expires, and that with respect to the increased tax base and amount of tax increased due to the determination or correction, a request for correction shall be made within 90 days (limited to within three years after the statutory due date of return expires) after

As such, a person eligible for filing a request for correction under Article 45-2(1) of the Act is limited to a person liable for duty payment who has filed a tax base return by the statutory due date of return. If a tax return is filed by the statutory due date of return, as long as the tax return is filed by the statutory due date of return, taxes in the form of tax return may be filed, as well as taxes in the form of imposition, where a tax return is filed by the due date stipulated for the duty of cooperation of the person liable for duty payment. In a case where a tax authority makes a tax return within the due date of return after a tax return or a revised return, a request for correction may be filed. It can be asserted by the method of a lawsuit seeking correction as well as by the method of a lawsuit seeking correction as to the propriety of a return and an increase

Therefore, in a case where a taxpayer filed a return on the original refund amount, but the tax authority recognized that the refund amount was denied and the taxation amount was made, or the tax authority made a decision on the increase or the increase or decrease by the tax authority after filing the return, the taxpayer can file a lawsuit seeking revocation of the disposition or contest the propriety thereof within the objection period against the disposition.

(2) In general, in cases where an administrative agency’s refusal to take action following a citizen’s affirmative filing of an application constitutes an administrative disposition that is subject to appeal litigation, the filing of the application must be an exercise of public authority or an equivalent administrative action, and the refusal should cause any change in the applicant’s legal relationship, and the citizen should have the right to file an application under the relevant law or sound reasoning demanding that the refusal be made (see, e.g., Supreme Court Decisions 2001Du10936, Sept. 23, 2003; 2004Du12469, Feb. 25, 2005; 2004Du12469, Feb. 25, 2005). Therefore, even if a tax office rejected or rejected a request for correction filed by a person who is not entitled to file an appeal under Article 45-2(1) of the Act, it cannot be deemed a rejection disposition that is subject to appeal litigation (see Supreme Court Decision 98Du9608, Jul. 23, 1999).

However, as seen earlier, the lawsuit of this case is filed on the premise that the return or refusal constitutes a rejection disposition subject to appeal, as the plaintiff is a creditor of the construction cost, etc. against the non-party company and the whole creditor who is likely to lose the claim for refund of this case due to the disposition of this case, and is returned to the defendant on behalf of the non-party company on the ground that it is not a legitimate claimant after filing a request for correction based on Article 45-2(1) of the Act in order to preserve the claim for construction cost, etc., and thus, the lawsuit of this case is filed on the premise that the plaintiff is entitled to file a request for correction pursuant to Article 45-2(1) of the Act.

(3) The plaintiff does not correspond to the "person who has filed a tax base return, which is the person entitled to file a claim for correction stipulated in Article 45-2 (1) of the Act, within the statutory due date of return," but it is a creditor such as construction cost, etc. for the non-party company and a whole creditor who is likely to lose the claim for refund of this case due to the disposition of this case. (1) The plaintiff is entitled to file a claim for correction under Article 45-2 (1) of the Act directly or by subrogation of the non-party company, who is insolvent, in order to preserve the claim for construction price, etc. for the non-party company.

In full view of the following circumstances, the facts of recognition as seen earlier and the evidence mentioned earlier and the purport of the entire pleadings, the Plaintiff, a creditor of the non-party company or a creditor of the refund claim of this case, has a real and indirect interest in the disposition of this case and does not have any direct and specific legal interest (see, e.g., Supreme Court Decisions 96Nu3241, Feb. 14, 1997; 80Nu48, Mar. 10, 1981). Accordingly, the grounds alleged by the Plaintiff alone cannot be deemed as falling under the legal interested person who can claim the revocation of the disposition of this case and the refund claim of KRW 10,832,86,638, directly or by subrogation of the right to claim for correction of the non-party company.

Therefore, insofar as the Plaintiff’s right to request correction under Article 45-2(1) of the Act is not recognized, the instant refusal disposition by the Defendant who rejected the Plaintiff’s claim for correction is causing any change in the Plaintiff’s rights and duties or legal relations, and it cannot be deemed as an administrative disposition that is subject to an appeal litigation. Thus, the instant

① Claim for correction stipulated in Article 45-2 (1) of the Act refers to not only a request for correction of the tax base and amount reported or revised, but also a request for correction of the tax base and amount related thereto if the tax authority makes a decision or revised disposition, and, after the taxpayer’s report or revised report, a lawsuit for cancellation or correction of the tax base and amount related thereto may be instituted upon the taxpayer’s choice as to whether the amount of the return or the increase is appropriate. In fact, the Plaintiff seeks refund of the tax amount at the time of the initial return. This is the same as seeking cancellation of the disposition in this case’s request for correction.

② However, even if a third party who is not the other party to an administrative disposition has a legal interest in seeking revocation of the administrative disposition, the legal interest refers to a specific interest directly protected by the law based on the pertinent disposition. Thus, if the third party only has an indirect economic interest in the pertinent disposition, standing to sue shall not be sought revocation of the disposition (see, e.g., Supreme Court Decisions 98Du7923, Apr. 25, 200; 2002Du1267, Sept. 23, 2003; 89Nu4277, Apr. 24, 190; 200.). Accordingly, the plaintiff cannot seek revocation of the above disposition by means of an order of assignment of the non-party company, which was issued by the non-party company on Apr. 26, 2010, with respect to the non-party company's value-added tax, 1081; 2008Du1681, Aug. 16, 2010>

③ In light of such circumstances, the Plaintiff cannot be deemed to have any direct legal interest in exercising the right to demand rectification under Article 45-2 (1) of the Act, or in subrogation of the right to demand rectification in order to preserve the claim for construction price, etc. against the non-party company.

(4) Article 55 (2) of the Act provides that "Any interested person who is likely to be infringed on his/her rights and interests by this Act or any other tax-related Act and falls under any of the following subparagraphs shall be entitled to request the revocation or modification of a disposition made by a person who is subject to an illegal or unfair disposition, or to file a claim for other necessary disposition against him/her." Article 55 (2) of the Act provides that the second person liable for duty payment who receives a notice of tax payment (subparagraph 1), a person who is liable for physical duty, a person who receives a notice of tax payment (subparagraph 2), a guarantor (subparagraph 3), and other persons prescribed by Presidential Decree (subparagraph 4) shall be entitled to appeal against an interested person who is not the direct counterpart to the relevant disposition, but who is deemed to have legal interests in seeking the revocation of the relevant disposition. It is difficult to deem that the Plaintiff does not fall under an interested person cited in the foregoing provision, and as seen earlier, it is likely that his

3. Conclusion

The instant lawsuit is unlawful and thus dismissed.

[Attachment Form 5]

Judges Cho Il-young (Presiding Judge) Kim Yong-dong

Note 1) The phrase “ June 13, 2011,” written in the written complaint appears to be a clerical error in the statement of the claim.”