Hyundai Industrial Development Co., Ltd. (Bae & Yang LLC, Attorneys Jeon full-time et al., Counsel for the defendant-appellant)

Republic of Korea (Court of Law, Attorney Park Jong-chul, Counsel for defendant-appellant)

May 1, 2014

1. The defendant shall pay to the plaintiff 10,861,851,886 won with 5% interest per annum from July 19, 2011 to June 5, 2014, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the disposition except for a claim for damages for delay calculated at the rate of 20% per annum from the date of service of the copy of the complaint to the date of full payment

1. Details of the disposition;

A. Status of the parties

1) Nonparty 1 Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”) conducted a new construction and sale business (hereinafter “instant apartment”) with the aim of building business, real estate sales business, house construction, and sales business from around December 2005 to Ulsan-gu, Ulsan-gu, △△△-dong apartment (hereinafter “instant apartment”) from around December 2005.

2) On April 25, 2006, the Plaintiff entered into a contract with the non-party company for the instant apartment construction (hereinafter “instant contract”) on a housing construction business and housing site development business that newly constructs and sells the apartment of △△△ brand, △△△, and on April 25, 2006.

B. Plaintiff’s seizure and assignment order of claim for refund of value-added tax

1) On March 30, 2010, the non-party company obtained the approval from the head of the Gu during Ulsan Island to use the instant apartment as 45,615 square meters of the final site area, 6,575 square meters of the building area, 6,575.845 square meters of the building area, and 820 households of 10,0

2) 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 under the instant contract to the non-party company, and paid the value-added tax of KRW 10,861,850,886.

3) On April 26, 2006, for the payment of the construction cost, etc. under the instant contract to the Plaintiff, the non-party company issued and delivered promissory notes worth KRW 305,070,192,00 at face value, and prepared a notarial deed (No. 15, 2006, a notary public made out a notarial deed (No. 10,861,850,886, based on the authentic copy of the said notarial deed) which recognizes compulsory execution. The Plaintiff applied for a seizure order of KRW 108,618,50,847, which was paid by the non-party company to the Plaintiff as of March 30, 2010, with respect to the construction cost of KRW 10,861,850,886, which was paid by the non-party company to the Republic of Korea (hereinafter “instant refund claim”) and received a refund order of KRW 308,205,41,206 (hereinafter “the above order of Seoul Central District Court”).

C. Conclusion of a disposal trust contract by the non-party company

1) On June 11, 2010, the non-party company made the Plaintiff as the first beneficiary and the non-party Korea Asset Trust Co., Ltd. (hereinafter “Korea Asset Trust”) as the trustee. The non-party company concluded a disposal trust contract with respect to 661 households, such as apartment units unsold in the time of the instant apartment units (including household units with unpaid and unpaid rent; hereinafter “instant trust real estate”), among the instant apartment units (hereinafter “instant trust contract”).

2) On June 16, 2010, the Nonparty Company completed the registration of transfer of ownership based on the instant trust agreement with the Ulsan District Court’s Jung-gu Office of Registry No. 45137, Jun. 16, 2010.

D. Declaration of revised value-added tax and imposition of non-party company

1) In 2010, the non-party company filed a return on input tax amount to be refunded at the time of filing a return on the establishment of value-added tax for the first time in 2010 (hereinafter “tax amount to be refunded”).

2) On the premise that the instant trust agreement provides the Plaintiff, who is the first beneficiary, with the instant trust real estate subject to value-added tax, the Nonparty Company issued a tax invoice with the Plaintiff as the recipient, and on August 11, 2010, additionally paid KRW 18,193,81,691, which is the value-added tax base for the portion of the instant trust real estate, to the head of Samsung District Tax Office on the first quarter of 2010 (hereinafter “instant revised tax return”), but did not pay the tax amount accordingly.

3) As a result of the on-site verification of the value-added tax refund for the non-party company, the head of Samsung District Tax Office issued by the non-party company: (a) calculated the wrong part of the revised tax base and the application of the additional tax for failure to file a return; and (b) notified the non-party company of the correction on November 1, 2010 to pay value-added tax (including additional tax) 5,173,101,830 won pursuant to the revised tax return of this case (the above duty payment notice is a mixed disposition of collection ordering the payment of the tax amount determined by the revised tax return of the non-party company; hereinafter referred to as the “instant disposition”).

E. Plaintiff’s request for correction and related litigation

The Plaintiff revoked the instant disposition and filed a claim for correction with the head of Samsung Tax Office to the effect that it would request refund of KRW 10,832,886,638 of the initial refundable tax amount, but the head of Samsung Tax Office rejected the claim. The Plaintiff filed a lawsuit against the head of Samsung Tax Office (Seoul Administrative Court 201Guhap21300) seeking revocation of the revocation of the rectification rejection disposition, but was dismissed by the said court on April 26, 2012 on the grounds that the Plaintiff cannot be deemed to be a legal interested person. The Plaintiff appealed against the Plaintiff (Seoul High Court 2012Nu13636), but was sentenced to the dismissal of the appeal on October 31, 2012, and the appeal (Supreme Court 2012Du27183) is currently underway.

F. The instant lawsuit

1) Based on the instant assignment order on the ground that the instant disposition is null and void, the Plaintiff filed a lawsuit claiming the Defendant for the payment of KRW 10,861,850,886 of the refunded tax amount and delay damages (Seoul Central District Court 201Gahap72412) based on the instant assignment order, but was dismissed by the said court on July 10, 2012 on the ground that it is difficult to deem the instant disposition null and void.

2) The Plaintiff appealed against it (Seoul High Court 2012Na61201). On May 2, 2013, the Plaintiff transferred from the above court to the competent court, which is the competent court, on the ground that “the entire amount claimed by the Plaintiff constitutes a party litigation under the Value-Added Tax Act, seeking the refund amount under the Value-Added Tax Act.”

[Reasons for Recognition] Each entry of Gap evidence Nos. 1, 7 through 16, 22, 23, 26, Eul evidence No. 1 (including branch numbers), and the purport of the whole pleadings

2. The plaintiff's assertion

The instant trust agreement aims to secure all claims, such as the construction cost claim, which the Plaintiff, the first beneficiary, against the Nonparty Company, and cannot be deemed to have transferred ownership or right to dispose of the instant trusted property to the Plaintiff. The instant trust agreement does not constitute “supply of goods,” which is subject to value-added tax. Nevertheless, the instant trust agreement was revised on the ground that the instant trust agreement constitutes the supply of goods, and the head of Samsung Tax Office rendered the instant disposition based on the instant revised report, and thus, the instant revised report and the instant disposition were null and void because its defect is significant and apparent.

As long as the revised return of this case and the disposition of this case are null and void, it cannot be deemed that the claim for refund of this case terminates, and the defendant is obliged to pay the refund of this case and delay damages to the plaintiff as the

3. Whether the instant trust is subject to value-added tax

(a) Facts of recognition;

1) The instant contract was finally amended on February 14, 2007, June 6, 2007, and April 22, 2009, and the amount of the contract was KRW 167,302,300,000 (including value-added tax) in the final final and conclusive contract, but the following agreements were made regarding the distribution of proceeds from sale, the method of paying the construction cost, the preservation of claims, etc.:

Article 20 (Joint and Several sureties for Financial Institutions) of the table included in the main text. 1. Where the non-party company requests joint and several sureties from financial institutions for the purpose of financing the balance of land necessary for the implementation of traffic impact assessment and the transfer expenses, project promotion expenses, etc., the plaintiff may do so within the limit of 15,00,000 won per day (Won 15,00,000), and the necessary documents for joint and several sureties shall be submitted to the non-party company. 2. The loan of the non-party company due to increase in necessary expenses shall be 10,00,000 won (Won 10,00,000,000) and the loan interest (8% per annum) shall be repaid with the first priority loan under paragraph 1. The non-party company shall not be able to collect the outstanding money from the non-party company and the proceeds from sale and disposal of the company from sale in lots, and the proceeds from sale in lots shall be paid to the plaintiff in the order of sale in lots.

2) The non-party company was granted a loan of KRW 155 billion in total from the National Bank and ABF Capital. The Plaintiff jointly and severally guaranteed the obligation to repay the principal and interest of the non-party company pursuant to Article 20(1) of the instant contract.

3) On June 1, 2010, the National Bank notified the non-party company's loan loss due to the loan of the non-party company in accordance with the bank credit transaction terms and conditions. On June 3, 2010, the Plaintiff, as joint and several surety, subrogated the non-party company's debt of KRW 10 billion and the non-party company's debt of KRW 127,239,841,566 to the National Bank on June 3, 2010.

4) The Plaintiff was paid only KRW 14,932,075,072 out of the total construction cost under the instant contract by March 30, 2010, which was completed the completion of the construction and usage inspection of the instant apartment. By May 31, 2011, the Plaintiff’s attempted construction cost of KRW 61,32,075,072 and the discounted sale price of KRW 8,471,205,00,00, which shall be reduced from the actual receipt amount and the construction contract amount of KRW 97,49,01,00,000, remaining after deducting the discounted sale price of KRW 61,32,075,072.

5) On June 11, 2010, the non-party company entered into the instant trust agreement with the Korea Asset Trust, and the main contents thereof are as follows (the truster is the non-party company, the trustee, and the beneficiary are the Plaintiff).

본문내 포함된 표 제1조(신탁목적) 이 신탁의 목적은 수탁자가 신탁부동산에 대하여 처분업무 등을 수행하는 데 있다. 제3조(신탁기간) ① 신탁기간은 별지 1과 같고, 신탁종료 전에 수익자와 수탁자는 합의하여 그 기간을 연장할 수 있다. ② 신탁기간의 만료 시 수탁자 또는 수익자의 특별한 의사표시가 없는 한 이 신탁계약은 동일한 조건으로 1년씩 자동연장된다. ③ 수탁자가 신탁부동산의 일부를 매각하여 소유권이전등기절차를 경료한 때에는 그 부분에 한하여 이 신탁계약은 일부 종료된 것으로 본다. 제11조(보험계약) ⑥ 본조에 따른 신탁부동산의 처분에 관한 일체의 업무(분양계약 체결 및 해제/해지, 분양계약자 관리, 분양대금 수납 및 분양계약 해제/해지 시 분양대금 환불, 부동산거래계약 신고, 입주관리 등)는 우선수익자의 책임과 비용으로 수행한다. ⑦ 본조에 의한 신탁부동산의 처분에 대하여 위탁자는 수탁자 및 우선수익자에게 일체 이의를 제기치 아니한다. 제16조(신탁부동산의 매각) 수탁자는 수익자의 신탁부동산 처분요청에 따라 신탁부동산의 소유권을 매수자에게 이전한다. 제18조(신탁종료) 신탁계약은 다음 각호의 경우에 종료한다. 1. 신탁의 목적을 달성한 경우 2. 신탁의 목적을 달성할 수 없는 경우 3. 신탁기간이 만료된 경우 4. 제17조에 의하여 신탁계약이 해지된 경우 제19조(신탁종료 시 신탁이익의 지급) ① 신탁계약이 종료된 경우 수탁자는 신탁의 최종계산을 하여 신탁이익을 다음 각 호의 방법에 따라 수익자에게 지급한다. 제26조(세무와 회계 등) ① 신탁사업과 관련하여 발생되는 세무·회계에 관한 사항은 수익자가 책임지고 처리하기로 한다. ② 신탁재산의 처분과 관련된 부가가치세에 대하여는 수익자가 신고·납부하도록 하며, 그 지급은 제14조 비용의 부담을 준용한다. [특약사항] 제1조(신탁의 목적) 본 신탁계약의 목적은 “신탁계약 본문” 제1조의 신탁목적 이외에 우선수익자가 신탁부동산을 분양함에 있어 우선수익자가 위탁자에 대하여 가지는 공사대금채권 등 일체의 채권을 보전하고, 수분양자에게 안정적으로 신탁부동산의 소유권을 이전하는 데 있다. 제2조(수익자 및 우선수익자) ② 우선수익자의 수익한도금액은 별지1의 4와 같고, 우선수익자의 구체적인 수익범위는 다음 각호와 같다. 1. 본 사업부지 매입자금 및 사업비의 조달을 위한 PF대출금에 대한 지급보증(또는 채무인수)으로 인 하여 발생하는 위탁자에 대한 (구상)채권 2. 위탁자에 대한 공사도급대금을 포함하여 위탁자와 우선수익자간에 체결한 공사도급계약(공사도급약정, 정산합의서 포함, 이하 같다) 등에 근거하여 위탁자로부터 받을 수 있는 모든 명목의 금원 3. 위 각호의 수익범위에는 원금, 이자, 비용, 손해배상금, 공사대금 등을 포함하여 이에 한하지 않는다. ③ “신탁계약 본문” 제7조 제3항에도 불구하고 위탁자는 우선수익자의 동의 없이 수익자를 추가로 지정하거나 변경할 수 없다. 제3조(신탁부동산의 처분) ① “신탁계약 본문” 제16조 신탁부동산의 처분에 있어, 수탁자는 신탁부동산에 관하여 위탁자 등을 매도인으로 하여 분양계약을 체결한 자 및 그 승계인(이하 “수분양자”라 함)으로서 우선수익자가 요청하는 자에게 직접 소유권이전하는 방식으로 처분할 수 있다. 또한, 소유권이전일까지 위탁자가 수분양자로부터 수령한 분양대금 중 우선수익자가 인정하는 금액은 소급하여 그 대금납부의 효력을 인정한다. ② 신탁부동산 중 미분양 세대(수분양자와의 분양계약이 해제 또는 해지된 세대 포함)에 대하여 수탁자는 우선수익자가 지정하는 조건(가격, 방법, 시기 등)으로 처분하기로 하고, 위탁자는 동 처분에 사전 동의한다. ③ 신탁부동산의 처분을 위한 실질적인 매각활동은 우선수익자가 수행하기로 하며, 신탁부동산의 처분 시 매도물건에 대한 하자책임 및 명도책임은 우선수익자가 부담키로 하고 수탁자는 매도인으로서의 일체의 의무를 부담하지 아니한다. ⑤ 신탁부동산 처분대금 수납·관리 및 정산업무는 우선수익자가 수행하여 위탁자에 대한 채권 변제에 충당하기로 하고, 이 경우 수익자는 신탁이익을 교부받은 것으로 본다. 제4조(신탁부동산의 관리) ① 수탁자는 신탁관련 업무수행과 관련된 주요 사항을 우선수익자와 협의하여 수행하되, 수탁자는 등기부등본상의 소유권 관리와 우선수익자의 요청에 따른 소유권 이전 업무만을 수행한다. ② 위탁자는 신탁부동산의 실질적 보존 및 일체의 관리행위에 대해 우선수익자의 승인을 받아야 하며, 동 행위에 대한 책임과 비용을 부담한다. ③ “신탁계약 본문” 제9조 제2항에도 불구하고 신탁부동산의 보전 및 관리에 필요한 비용은 우선수익자가 자신의 비용과 부담으로 처리하기로 한다. 제5조(담보설정 제한) 위탁자는 신탁기간 동안 우선수익자의 사전동의없이 제3자에 대한 채무(보증채무 포함)를 담보하기 위하여 신탁부동산에 대한 담보설정 행위를 할 수 없다. 다만 우선수익자의 동의가 있는 경우에 위탁자는 담보설정할 수 있으며, 수탁자는 이에 협조하기로 한다. 제7조(신탁기간) “신탁계약 본문” 제3조에도 불구하고 우선수익자의 의사표시가 없는 한 “본 신탁계약”은 동일한 조건으로 1년씩 자동연장된다. 제8조(신탁해지 등) “신탁계약 본문” 제17조의 신탁해지에 있어 위탁자는 우선수익자의 서면 동의 없이 신탁계약을 해제할 수 없다. 제10조(세무와 회계 등) ① 신탁재산 및 동 재산의 관리 또는 처분과 관련된 세무 및 회계사항은 위탁자와 우선수익자의 책임과 부담으로 처리키로 한다. ② 신탁부동산의 처분과 관련된 부가가치세의 세무처리주체는 관계법령 또는 세무관할관청의 해석에 따라 위탁자 또는 우선수익자로 정한다. ③ 본조 제2항에 따라 우선수익자가 신탁재산(건물)의 처분에 따른 부가가치세의 납부의무자가 되는 경우의 부가가치세는 우선수익자의 채권(수익권)과 별도로 신탁재산에서 지급한다. 별지 1 1. 신탁기간 : 신탁계약체결일로부터 3년간 4. 수익한도금액 : 금삼천육백육억이백이십만원정(￦360,602,200,000)

6) On April 12, 2010, the Non-party representative director of the non-party company had been deprived of compulsory execution by bearing false debt on or around April 12, 2010 with the intent of evading compulsory execution. On October 20, 2010 after the revised report of the instant case, the non-party, via the e-mail of the Plaintiff’s president, tried to claim that the issue of value-added tax related to the instant trust was serious and bring about an attempted amount of KRW 13.7 billion, but was tried to bring an issue of value-added tax again by e-mail on November 15, 2010, but tried to bring an attempted amount of KRW 13.7 billion under the settlement agreement, but failed to bring an attempted amount (Seoul Central District Court Decision 2013Da1201). The non-party was sentenced to imprisonment with prison labor and imprisonment with prison labor from the above court on December 26, 2013 and the non-party’s appeal was filed with Seoul Central District Court for two months and two years (the non-party).

[Ground of recognition] Each entry of Gap evidence Nos. 1 through 6, 11, 30 and the purport of the whole pleadings

B. Determination

1) Article 1 Subparag. 1 of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Act No. 11608, Jan. 1, 2013; hereinafter the same) provides that “the supply of goods or services” shall be subject to value-added tax; Article 6(1) provides that “the supply of goods” shall be “delivery or transfer of goods due to any legal cause under a contract.” Article 9(1) provides that “where the transfer of goods is not required, the time the goods are made available” as the time of the supply of goods. Article 14 of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter the same shall apply) provides for the scope of the supply of goods. In full view of the purport of Articles 6(1) and 9 of the Value-Added Tax Act; Article 14 of the Enforcement Decree of the Value-Added Tax Act; and in light of the nature of the supply of goods or legal cause, the transfer of goods.

2) Considering the following circumstances revealed in the facts of recognition as above, the instant trust agreement merely aims to secure the Plaintiff’s construction cost and claim for reimbursement against the Nonparty Company, and cannot be said to have received the instant trust property from the Nonparty Company. In other words, the instant trust agreement is not a supply of goods subject to value-added tax.

① Purpose of the instant trust agreement

The purpose of the instant trust agreement is to preserve the claims for the construction cost and the right to indemnity held by the Plaintiff, the first beneficiary, against the non-party company, the truster, in selling the trusted real estate, and to transfer the ownership of the trusted real estate to the buyer in a stable manner by the trustee. The purpose of the instant trust agreement is to dispose of the instant trusted real estate to the third party, the truster, instead of the non-party company, and to supply the instant trusted real estate to the third party. The purpose of the instant trust agreement is to only dispose of the instant trusted real estate through the instant trust agreement and to obtain repayment of its claims, but not to acquire the instant trusted real estate. The purpose is to preserve the Plaintiff’s claims against the non-party company. The Plaintiff is to conduct the sale of the instant trusted real estate, or manage and settle the proceeds of the disposal of the trusted real estate, and to preserve the Plaintiff’s claims against the non-party company. The Plaintiff concluded the instant trust agreement at the time of the conclusion of the instant trust agreement to secure the truster’s performance of claims against the non-party company.

② Details of the instant trust agreement

The supply of goods under the Value-Added Tax Act shall transfer ownership so that the right to dispose of the trusted real estate can be exclusively used and disposed of by the non-party company under the instant trust agreement. However, the right to dispose of the instant trusted real estate is limited pursuant to the instant trust agreement. However, the Plaintiff does not acquire the right to exclusively dispose of the instant trusted real estate, use the right to exclusively dispose of, or obtain the right to profit from, the ownership. Where the Plaintiff’s claim is repaid or equivalent thereto under the instant trust agreement, the trust agreement is terminated (Article 18 subparag. 1), and the remaining assets shall be returned to the non-party

The accord and satisfaction is a real contract established when another payment is actually made in lieu of the original obligation. If another payment is a transfer of real estate, the payment in substitutes shall be completed only if the transfer of the ownership is completed and the existing obligation is extinguished. Thus, a creditor cannot be deemed to have satisfied the actual requirements for the acquisition of ownership before the transfer of the ownership is completed, and therefore, the pertinent real estate shall be deemed to have been acquired at the time of the transfer of the ownership is completed (Supreme Court Decision 98Du17067 delivered on November 12, 199). The instant trust contract only aims to dispose of the instant trusted real estate to a third party and preferentially cover the Plaintiff’s price for construction and indemnity against the Plaintiff’s claim, and thus, the Plaintiff’s construction and indemnity claim against the Nonparty company shall not be extinguished only by the execution of the instant trust contract. Moreover, the Plaintiff does not acquire the ownership of the instant trusted real estate in lieu of the construction price and indemnity claim against the Nonparty company

③ Whether and when the Plaintiff’s construction price and indemnity claim against Nonparty Company were extinguished

Under the instant trust agreement, the maximum amount of profit under the instant trust agreement is set at KRW 360,602,200,000, such as promissory notes issued by the non-party company, and does not extinguish the Plaintiff’s claim equivalent to the same amount by evaluating the value of the instant trusted real estate. The conclusion of the trust agreement alone does not determine the profit attributable to the beneficiary. The instant trust agreement alone is not enough to determine the “value of supply” to pay value-added tax. In addition, the Plaintiff did not separately pay the price for

(4) Where a beneficiary is a taxpayer of value-added tax.

The instant trust agreement is separate from the trustor and is another trust with which the first beneficiary exists.

In the case of another profit trust where a beneficiary other than a truster is designated under a trust contract and the proceeds of the trust accrue preferentially to the beneficiary, the profits and expenses incurred from the management, disposal, etc. of the trust property shall be attributed to the beneficiary within the scope within the scope of the right to benefit. Therefore, it is reasonable to view the business operator and the person liable to pay value-added tax as the beneficiary who is not the truster in this case (Supreme Court Decision 2005Du2254 Decided January 13, 2006). In the case of the instant trust real estate sold to a third party, the beneficiary is obligated to pay value-added tax only because the gains accrued from the sale are attributed to the beneficiary. In addition, when the trust real estate is sold to a third party, there is a supply of goods and the supply price for the collection of value-added

4. Whether a revised declaration or disposition of this case is null and void a year;

A. In order for a taxation disposition to be deemed null and void as a matter of course, it is insufficient to say that there is an illegality in the disposition. The defect is objectively clear and obvious, and it is necessary to determine whether the defect is significant and obvious, it is necessary to consider the purpose, meaning, function, etc. of the laws and regulations which serve as the basis for the taxation disposition as a objective and to reasonably consider the specificity of the specific case itself (see Supreme Court Decision 2006Da81257, Apr. 23, 2009, etc.).

B. The instant trust contract does not mean the supply of goods subject to value-added tax. However, the instant revised declaration and disposition premised on the instant trust contract’s supply of goods subject to value-added tax. As such, the instant revised declaration and disposition are deemed taxable objects, and have significant defects in deeming that they are not subject to value-added tax, and the following circumstances should be deemed as apparent defects.

① According to Article 6(6)1 of the Value-Added Tax Act, the offering of goods as security is not deemed the supply of goods, and Article 17(1) of the Enforcement Decree of the same Act does not regard the offering of movable property, real estate, or real estate rights for the purpose of pledge, mortgage, or transfer for security as the supply of goods. According to the Value-Added Tax Act and subordinate statutes, it is clear that a trust agreement for the purpose of offering security is

② The head of Samsung Tax Office conducted an on-the-spot investigation with respect to the instant claim for refund, and confirmed the content of the instant trust agreement. The instant trust agreement is merely a trust agreement for the Plaintiff’s construction cost and the recovery of claims for reimbursement, and cannot be deemed as being supplied with the instant trusted real estate. Therefore, construing the instant trust agreement as payment in kind is merely based on the wrongful interpretation of the law by the head of Samsung Tax Office, and does not have any problem after examining the facts.

③ Under the Value-Added Tax Act, the “sales tax amount” is calculated by applying a specific tax rate to the value-added value at each stage, and the method of tax credit prior to deducting the “purchase tax” borne at the time of the purchase of goods or services is adopted. Value-added tax imposes a duty on a person liable for tax payment to collect the value-added tax from a person who is substantially liable for tax payment and pays the value-added tax to the Government (Article 15 of the Value-Added Tax Act). Article 2 Subparag. 9 of the Framework Act on National Taxes provides for a person liable for tax payment who is substantially liable to pay national tax under the tax-related Acts. In the case of value-added tax, there is a difference between the person liable for tax payment and the taxpayer who is substantially liable for tax payment. If the instant revised tax return was lawful due to the characteristics of value-added tax, the Nonparty company is not substantially disadvantaged

④ On April 26, 2010, the Plaintiff received an order to return the instant refund claim and confirmed on April 28, 2010 by the order to the head of Samsung Tax Office. Nonparty Company: (a) abused that the final return of value-added tax for the first period of time in 2010 did not have any way to dispute the Plaintiff’s issuance of tax invoices; and (b) filed a revised return; and (c) did not pay value-added tax on the part of Nonparty Company’s representative director. Nonparty Company’s filing the instant revised return for the malicious purpose of receiving the settlement amount from the Plaintiff;

5. Sub-committee

As long as the revised return and disposition of this case are null and void as a matter of course, the instant tax refund claim cannot be deemed to have expired due to the revised return of this case. The Defendant is obligated to pay damages for delay calculated at the rate of 5% per annum under the Civil Act from July 19, 2011 to June 5, 2014, and 20% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment [in relation to delay damages, the Defendant has a duty to pay damages for delay calculated at the rate of 10,861,851,866 won from the filing of the Plaintiff’s lawsuit of this case and damages for delay incurred for a long time due to the delivery of a copy of the complaint of this case, which is the date following the delivery of the original complaint of this case, to the Plaintiff, who is the entire creditor of the instant tax refund claim, to the Plaintiff, as seen above.”

6. Conclusion

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

[Attachment]

Judges Kim Jong-jin (Presiding Judge)