Seoul Southern District Court 2010 Gohap22324 ( October 07, 2011)

The plaintiff's assertion is without merit, since there is no room for final tax refund.

With respect to value-added tax in the method of filing a final return on value-added tax, refund tax arising from the filing of the final return on value-added tax is already finalized only for the taxable transaction reported at the time of filing the return, while on the other hand, the tax transaction in this case and the subsequent input tax return were omitted, and there is no room to bring about a final refund tax due to this.

2011Na86692 Part of the collected money

AArush Corporation, Ltd.

Korea

Seoul Southern District Court Decision 2010Gahap22324 Decided October 7, 2011

May 2, 2012

May 23, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 00 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. On March 17, 2009, the Plaintiff filed a payment order with Seoul Southern District Court 2009Guj2685 against Seoul Seoul Southern District Court (hereinafter referred to as "SeoulB Aviation") to the effect that "Seoul BB Aviation would pay to the Plaintiff KRW 000 and its delay damages," and the payment order was finalized on April 11, 2009.

B. After that, on December 31, 2009, the Plaintiff was served on the Defendant on January 6, 2010, by Seoul Southern District Court 2009TTB1681, and the original copy of the payment order for the second time of the second time of the second time of the second time of the second time of the above paragraph was the title of title, and the SeoulB Air received the attachment and collection order for KRW 1.32 million from among the tax refund claims against the Defendant, and the collection order was served on the Defendant on January 6, 2010 and became final and conclusive around that time.

C. On the other hand, SeoulB Aviation paid 00 won (supply price of 000 won + value-added tax 000 won + value-added tax 000 won) and 000 won (value-added tax 000 won + value-added tax 000 won) to the Aircraft entrusted management service (hereinafter “instant tax transaction”) on June 30, 2008, which was the first taxable period of the value-added tax for the first quarter of the year 2008, respectively, and received a tax invoice for the instant transaction from the CCC aviation on the same day.

D. After that, SeoulBA filed a final tax return on July 25, 2008 on the first quarter of value-added tax on July 25, 2008, and without submitting a list of the total tax invoices by seller on the instant tax transaction, the SeoulBA did not enter any item on the input tax amount due to the instant tax transaction (hereinafter “the instant input tax amount”).

[Reasons for Recognition] In the absence of dispute, Gap evidence 1 to 3, evidence 6, evidence 7, and evidence 3, the purport of the whole pleadings

2. The plaintiff's assertion and judgment as to the plaintiff

A. The plaintiff's assertion

(1) In the first half of the value-added tax period for the first half of 2008 SeoulB aviation, the pertinent purchase tax amount was 000 won (00 won + 000 won) over the amount of the input tax.

(2) However, SeoulB aviation omitted the input tax amount of this case because it did not make the final return of value-added tax, and the head of the competent district tax office did not perform the duty to investigate and determine the refundable amount pursuant to Article 21(1) of the Value-Added Tax Act, and even if the aforementioned final return was made, the SeoulB aviation should have immediately determined the national tax refund pursuant to Article 51(1) of the Framework Act on the National Taxes so long as the refundable amount was incurred to SeoulB aviation

(3) Nevertheless, the Defendant did not perform the duty of determining the value-added tax refund or national tax refund, and the Seoul BB aviation had already paid tax refund equivalent to the input tax amount in this case, and the Seoul BB aviation had the duty of refund of value-added tax against the Defendant.

(4) On the other hand, Seoul BB aviation has the tax amount of KRW 000 as a result of the sales adjustment by the Deputy Tax Office on September 30, 2009, and the above tax amount of KRW 134,100,000 is deducted from the above tax amount of KRW 134,100,00, and thereafter, on December 31, 2009, the Plaintiff received the attachment and collection order for the value-added tax refund claim against the Defendant (hereinafter “instant refund claim”) against the Defendant under the above circumstances, and the Defendant is obliged to pay the Plaintiff the refund according to the collection order.

B. Determination

(1) Claim on the final return of value-added tax by SeoulB Aviation

(A) The provisions of Article 51(1) of the Framework Act on National Taxes, Article 24 of the Value-Added Tax Act, and Article 72 of the Enforcement Decree of the same Act provide that when there are erroneously paid amounts or refundable amounts, the existence and scope of which are already determined as unjust gains by the Government, the immediate return of which is reasonable in terms of justice and fairness. Thus, the erroneously paid amounts or refundable amounts, the existence and scope of which are determined as yet, may be claimed by a taxpayer as a civil lawsuit seeking return of unjust gains. Accordingly, in the case of value-added tax being declared, the existence and scope of the tax base or refundable amount are determined by the final return under Article 19 of the Value-Added Tax Act or the decision of correction under Article 21 of the same Act, and if so, the taxpayer may claim that erroneously paid amounts or refundable amounts, the existence and scope of which have already been determined by the said final return or the decision of correction under the legal principles of return of unjust gains, and claim a refund as a civil lawsuit, by asserting that the amount of erroneous payment or refundable amount received without legal causes, etc.

(B) With respect to the value-added tax for the first term of 2008 by the health team, and SeoulB Aviation filed a final return on its tax transaction within the due date, and did not impose the pertinent tax transaction and its subsequent input tax amount (in this respect, the Plaintiff’s assertion that SeoulBA did not make the final return itself). In light of the aforementioned legal principles, in light of these facts, the SeoulB aviation’s final return on the first term value-added tax for 2008 by filing the final return on the tax return on the tax base of 2008, the SeoulB aviation tax amounting to SeoulB aviation is already final and conclusive only for the tax transaction reported at the time of the report, and on the other hand, SeoulBA only omitted the instant tax transaction and its subsequent input tax amount as the premise for the refund claim, and thus there is no possibility that the tax refund amount becomes final and conclusive due to such omission (Article 17(2)1 of the Value-Added Tax Act, and the portion of the Plaintiff’s tax invoice cannot be accepted.)

(2) Claim on the duty to determine tax refund under the Framework Act on National Taxes and the Value-Added Tax Act

(A) The amount overpaid or erroneously paid under Article 51 of the Framework Act on National Taxes constitutes unjust enrichment received or held by the State without any legal ground despite the absence of tax liability from the beginning or the lapse of the tax liability, and the provisions on the determination of the national tax refund are nothing more than providing for refund procedures by the tax authority as internal administrative procedures for the national tax refund for which the right to claim repayment of the taxpayer has already become final and conclusive by the determination of the national tax refund under the above provisions (see, e.g., Supreme Court en banc Decision 88Nu6436, Jun. 15, 1989; Supreme Court Decision 2007Du4018, Nov. 26, 2009). In addition, where a taxpayer refuses a revised return of the tax base or refundable tax amount, and the taxpayer refuses a revised return of the tax base or refundable amount within 6 months after the original return of the tax base or refundable amount was filed, and the tax base or refundable amount becomes final and conclusive by the revised return of the tax base or refundable amount under the aforementioned provisions.

(B) According to the health table, Gap, and Eul evidence 9 and 11 with respect to this case, it can be recognized that the plaintiff received a seizure and collection order for the claim of this case, and the plaintiff made several requests for the confirmation of the claim of this case to the defendant after receiving the seizure and collection order for the claim of this case, on the other hand, according to the legal principles as seen earlier, with respect to the matters reported by SeoulB Aviation, the head of the competent tax office, etc. should revise the correction order, and with respect to the matters reported by SeoulB Aviation, the refund claim of value-added tax should be confirmed in accordance with each provision of Article 24(1) of the Value-Added Tax Act, and Article 72 of the Enforcement Decree of the Value-Added Tax Act, and the facts recognized above alone are insufficient to recognize that there was a correction order under Article 21(1) of the Value-Added Tax Act and there is no evidence to support this, and this part of the plaintiff's assertion also cannot be accepted (Article 21(1) of the Value-Added Tax Act).

3. Conclusion

If so, the plaintiff's claim of this case must be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition by the court of first instance.