Payment of national tax refund according to the results of mutual agreement

As a result of mutual agreement, the corporate tax withheld in excess of the plaintiff is not obligated to pay from the beginning, the initial date of additional refund should be deemed the day following the date of payment of corporate tax.

Article 52 Additional Payment of National Tax Act

1. The Plaintiff:

A. The defendant shall pay 608,643,403 won and 5% interest per annum from May 8, 2003 to March 7, 2007 and 20% interest per annum from the next day to the day of full payment.

B. Defendant ○○○-si shall pay 51,141,798 won with 55% interest per annum from May 8, 2003 to March 7, 2007, and 20% interest per annum from the next day to the day of full payment;

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

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. Status of the parties

(1) The Plaintiff is a domestic corporation that engages in the manufacture and sale of clothing products, such as Cheongba, and the non-party ○○ (hereinafter “○○”) is a U.S. corporation that owns 100% of the Plaintiff’s shares.

(2) As the head of the tax office having jurisdiction over the Plaintiff’s domicile, the head of the ○○ Tax Office under Defendant Republic of Korea imposes and collects national taxes, including corporate tax, from the Plaintiff, and the head of the ○○○○ Office under Defendant ○○ City, who has jurisdiction over the Plaintiff’s domicile, imposes and collects resident tax to be imposed and collected on the Plaintiff, which is the head of the local government having jurisdiction over

(3) The Plaintiff’s use of the Plaintiff’s trademark, etc. and the payment of the user fee (12% of the total sales amount) to ○○○ in return, withheld corporate tax on the income and paid it in the above ○○ Tax Office, and paid the resident tax to be corporate tax on the withheld corporate tax to the above ○○ Office.

(b) Refund of corporate tax and resident tax to be imposed by mutual agreement between the Korea-U.S. tax authorities;

(1) The Plaintiff asserted that ○○ was paid in excess of the usage fees paid to the Plaintiff between 193 and 1998, and accordingly, it was recognized that ○○ was paid in excess of 5,236,351,843 won as stated in the separate refund of national taxes and the detailed statement of repayment interest rate of local taxes (hereinafter “attached sheet”) from 193 to 1993, ○○○ was paid in excess of 5,236,351,843 won as stated in the separate refund of national taxes and the detailed statement of repayment interest rate of local taxes (hereinafter “the separate sheet”) that ○○ paid in excess of the above excessive usage fees to the Plaintiff and the Plaintiff’s refund of the corporate tax amount paid in excess of the Plaintiff’s usage fees and the Plaintiff’s refund of corporate tax in the annexed sheet “corporate tax refund” and “resident tax refund” in the corporate tax refund column and the corporate tax refund tax amount paid in excess of KRW 381,384,781,386,4,386, etc.

(2) Accordingly, the Commissioner of the National Tax Service notified the Plaintiff of the completion of the procedure for mutual agreement on January 24, 2003, and on April 30, 2003, the revised matters among the above contents of mutual agreement respectively. On May 7, 2003, the Plaintiff filed an application with the ○○ Tax Office for the total amount of KRW 938,374,486, total amount of corporate tax refunds to be appropriated for KRW 1,134,236,936, to be appropriated for KRW 1,134,236,936, and in such a way, the amount of the resident tax refund to be appropriated for KRW 81,103,863,

C. After that, on June 18, 2003 with respect to the Plaintiff’s above corporate tax refund, the head of ○○ Tax Office requested the payment of additional refund of national taxes from the excess payment of each corporate tax to the above appropriation date. However, on July 3, 2003, the head of ○○ Tax Office refused the payment of additional refund on the ground that the corporate tax amount collected in excess of the above corporate tax amount was not refunded but directly deducted from the corporate tax amount to be additionally paid by the Plaintiff.

Facts that there is no dispute or deemed as a confession, Gap evidence 1 to 4, the purport of the whole pleadings.

* Relevant Provisions

Article 51 of the Framework Act on National Taxes appropriating and refunding national tax refund

(1) When a taxpayer has overpaid or erroneously paid national taxes, additional dues or disposition fees for arrears, or there is an amount of tax to be refunded under the tax-related Acts (where any amount of tax to be deducted from the amount of tax refundable under the tax-related Acts exists, referring to the remaining amount after deduction), the head of a tax office shall immediately determine such overpaid or erroneously paid amount, or refunded

Article 52 of the Framework Act on National Taxes

When the director of the tax office appropriates or pays the national tax refund under Article 51, he shall add to the national tax refund the amount calculated according to the interest rates as determined by the Presidential Decree, taking into consideration the period from the following day to the date of appropriation or decision of payment, and deposit interest rates of financial

In the case of a national tax refund due to rectification or cancellation of a return or imposition forming the basis of the payment after the erroneous payment, double payment, or payment under subparagraph 1, the date of such payment.

With respect to a refund by filing a return of refundable amount under the Income Tax Act, Corporate Tax Act, Value-Added Tax Act, Special Consumption Tax Act, Liquor Tax Act or Traffic Tax Act, when 30 days have elapsed from the date of such return: Provided, That with respect to the refundable amount arising from a decision or decision of correction due to failure to file a return of refundable amount or by mistake, when 30 days have elapsed

Article 30 of the Enforcement Decree of the Framework Act on National Taxes.

(1) Where the head of a tax office intends to appropriate or refund a national tax refund pursuant to the provisions of Article 51 of the Act, he/she shall determine the additional payment on refund of national taxes.

(2) The interest rate on the additional payment on the refund of national taxes under paragraph (1) shall be the interest rate as determined by the Ordinance of the Ministry of Finance and Economy in consideration of the average receipt

Article 13-2 of the Enforcement Rule of the Framework Act on National Taxes

The term "interest rate determined by the Ordinance of the Ministry of Finance and Economy in consideration of the average receipt rate of one-year term deposits in banks" in Article 30 (2) of the Decree means the interest rate determined and publicly announced by the Commissioner of the National Tax Service in consideration of the average interest rate of one-year term deposits in financial institutions whose head office is located in Seoul

○ Appropriation and transfer of Article 45 of the Local Tax Act:

(1) The impositions of a local government which have been overpaid or erroneously paid and repayment interest under Article 46 shall be appropriated for the impositions of other local governments, and the balance shall be repaid to persons liable for tax payment or person liable

Article 46 of the Local Tax Act: Calculation of Repayment Interest

If the person liable for tax payment or person liable for extraordinary collection erroneously pays the impositions of the local government, and the erroneously paid amount is to be appropriated or repaid as provided in Article 45 (1), the amount calculated by the interest rate fixed by the Presidential Decree in consideration of the deposit interest rate at the financial institutions from the date as provided in Article 47 to the date of notifying the repayment of or appropriating the amount erroneously paid (hereinafter referred to as “payment interest”)

Article 47 of the Local Tax Act:Initial Date of Calculating Repayment Interest

Where the head of a local government calculates repayment interest under Article 46, the initial date of calculation shall be as follows:

The next day from the date of payment in the case of the refund of the local government's impositions due to the erroneous payment, double payment, or the cancellation or the decision of correction after the payment in subparagraph 1 is made.

The next day from the date of determination for the erroneously paid tax amount due to the reduction or exemption of the legally paid local tax under subparagraph 2;

The next day from the date of enforcing the amended Act if the payment shows any erroneous amount due to the Act amendment after the tax was paid legally in subparagraph 3.

Article 39 (Calculation of Repayment Interest) of the Enforcement Decree of the Local Tax Act

The interest rate on overpaid or erroneously paid amounts pursuant to the provisions of Article 46 of the Act shall be the interest rate on additional payment of national taxes on refund of national taxes pursuant to Article 30 (2)

2. The parties' assertion

A. Summary of the cause of the plaintiff's claim

The portion paid by the Plaintiff to ○○ out of the usage fees paid by the Plaintiff is the amount paid by mistake even if it was not paid to ○○○. The Plaintiff withheld and paid corporate tax and resident tax to be paid in excess of the above excessive usage fees, and the amount equivalent to corporate tax to be withheld at source from the Defendant Republic of Korea according to mutual agreement between the US tax authorities, and resident tax to be paid in excess of the corporate tax from the Defendant Seoul Special Metropolitan City. Accordingly, refund of the above excess withholding tax and refund of resident tax to be paid in excess of the above amount constitutes refund of the amount of erroneous payment under Article 52 subparag. 1 of the Framework Act on National Taxes or Article 47 subparag. 1 of the Local Tax Act. Accordingly, the above provision of each Act and Article 51(1) of the Framework Act on National Taxes or Article 46 of the Local Tax Act and the resident tax to be paid in excess of the amount of national tax (local tax) and repayment interest under the interest rate or repayment interest rate under the Act and subordinate statutes shall be paid by May 7, 2003.

Therefore, the plaintiff claims against the defendant Republic of Korea for the payment of 608,643,403 won and its delay damages calculated as stated in the table of "additional Payment on Refund of Local Taxes" in the attached Table, and for the payment of 51,141,798 won and its delay damages, respectively, calculated as stated in the "Local Tax Repayment Interest" column of the same Table against the defendant Seoul Special Metropolitan City.

B. The defendants' defense dispute

The Plaintiff’s payment of the refund tax amount of this case to ○○○ who is a specially related party of this case under a user fee agreement between the Plaintiff and lawfully paid the amount of withholding tax and applied for a mutual agreement between the tax authorities. Therefore, it does not constitute erroneous or erroneously paid tax without any legal ground, and the tax authorities’ decision of correction of the tax authorities with regard to the return of the Plaintiff’s initial withholding tax amount and its gender are the same. Furthermore, as to the corporate tax to be additionally paid according to the Plaintiff’s refund of the user fee paid to ○○○, even though the Plaintiff was exempted from additional tax pursuant to Article 13 of the International Tax Adjustment Act and Article 23(2) of the Enforcement Decree of the same Act, it violates equity in paying the refund tax or the resident tax to be paid for corporate tax on the basis of the date of payment. Accordingly, the refund of corporate tax or corporate tax due to the mutual agreement of this case constitutes a disposition of correction by the tax authorities for erroneous or erroneous payment due to the Plaintiff’s cause, and thus, the date of calculating the refund tax amount should be applied mutatis mutandis Article 67 subparag. 3 of the Local Tax Act.

Thus, each of the claims of this case against the Defendants by the Plaintiff is unfair.

3. Determination

A. The initial date for calculating additional charges on the refund of corporate tax and resident tax to be paid;

(1) The fact that the resident tax to be paid as corporate tax and corporate tax to the Plaintiff according to the mutual agreement of this case was refunded in the way that the Plaintiff deducteds the corporate tax (or the amount of local tax) to the Plaintiff from the corporate tax to be paid additionally for each specific business year. As such, one of the provisions of each subparagraph of Article 52 of the Framework Act on National Taxes, in determining the initial date of calculating the additional payment of corporate tax, one of the provisions of each subparagraph of Article 47 of the Local Tax Act, shall be applied mutatis mutandis to the determination of the initial date of calculating the repayment interest of resident tax to be paid corporate tax (this case’s case’s case’s Seoul Special Metropolitan City shall be subject to Article 52 subparag. 6 of the Framework Act on National Taxes, which is not Article 47 of the Local Tax Act, and Article 3 of the Adjustment of International Taxes Act and Articles 17 and 23 of the Enforcement Decree of the same Act, but the defendant’s argument in this case’s Seoul Special Metropolitan City is in itself against the principle of no taxation without law

(2) However, it is clear in the interpretation that the refund amount of resident tax subject to corporate tax of this case is erroneous due to the reduction or exemption of local tax after payment under Article 47 subparag. 2 and 3 of the Local Tax Act, or the refund amount of resident tax subject to corporate tax of this case is not erroneous or erroneously paid due to the change of laws, Article 47 subparag. 1 of the Local Tax Act should be applied. Thus, it is clear that the initial date of calculating repayment interest will be the next day of the payment date under Article 47

(3) Next, according to the above basic facts, the corporate tax refund of this case was made by mutual agreement between the tax authorities of the Republic of Korea and the tax authorities of the United States. The contents of the mutual agreement verified that the plaintiff paid the fees to ○○○ in excess of the total of 5,236,351,843 won from the beginning to the normal amount (6% of the corrected net sales). Accordingly, the corporate tax refund of this case is based on the premise that the plaintiff was not obligated to pay the corporate tax from the beginning. Thus, the refund amount of the corporate tax of this case constitutes a "national tax refund due to erroneous payment under Article 52 subparagraph 1 of the National Tax Collection Act or correction of a return which became the basis of the payment after payment." Thus, the initial date of the additional refund is the date following the date of payment of the corporate tax.

The defendant Republic of Korea asserts that the corporate tax refund of this case constitutes the tax refund under Article 52 subparagraph 6 of the Framework Act on National Taxes. However, the tax refund under Article 52 subparagraph 6 of the Framework Act on National Taxes refers to the tax amount determined by the head of the tax office who has received a taxpayer's return according to the provisions of the Income Tax Act, the Corporate Tax Act, the Value-Added Tax Act, the Liquor Tax Act, or the Traffic Tax Act) after determining whether the tax refund satisfies the requirements for refund under the individual tax law. In particular, the proviso of subparagraph 6 of the above Article applies to the case where the tax refund occurs additionally due to the taxpayer's failure to file the return of the tax amount or the decision of correction due to the erroneous return or decision of correction. Thus, the refund of the corporate tax of this case is made by ex officio correction of the tax base of the amount of tax filed in excess of the tax return from the beginning to the United States government, and cannot be deemed to be identical to the refund of corporate tax by filing the return.

[This, in addition, the defendants asserted that the corporate tax to be additionally paid pursuant to Article 13 of the Act on the Adjustment of National Taxes and Article 23 (2) of the Enforcement Decree of the same Act is unfair since the plaintiff's receipt of additional tax refund on corporate tax or corporate tax based on the date of payment is contrary to equity because it violates the principle of equity. However, the defendants' assertion does not seem to have an aspect of being asked at all times in the legislative theory. However, since there is no special provision on additional tax payment under the Adjustment of International Taxes Act, since there is no special provision on additional tax payment under the above Adjustment of International Taxes Act, it cannot be interpreted beyond the possible meaning of the literature under Article 52 of the Framework Act on National Taxes and Article 47 of the Local Tax Act on the grounds of the special provision on the application of the above additional tax in calculating additional tax on the amount of tax to be paid according to mutual agreement.

(b) Calculation of additional dues;

In addition, Article 30(2) of the Enforcement Decree of the Framework Act on National Taxes provides that "three percent per day for the national tax refund" shall be changed to "interest rate prescribed by the Ordinance of the Ministry of Finance and Economy, taking into account the average interest rate of one-year term deposits in banks from 17036 December 29, 200 (Provided, That this shall be effective from 1 April 1, 2001 through 30), since Article 13-2 of the Enforcement Rule of the Framework Act on National Taxes newly established on March 31, 201 is "interest rate prescribed by the Ordinance of the Ministry of Finance and Economy" from the 0th day following the 0th day to 10th day of the 10th day of the 1st day of the 1st day of the 1st day of the 1st day of the 1st day of the 20th day of the 20th day of the 10th day of the 20th day of the 10th day of the 20th day of the 14th day of the 201.

Accordingly, when calculating additional refund and repayment interest according to each refund amount as shown in the attached Table, the total amount of additional refund on the refund amount of the corporate tax of this case shall be KRW 608,643,403, and the total amount of repayment interest on the refund amount of corporate tax shall be KRW 51,141,798.

C. Sub-committee

Therefore, Defendant Republic of Korea is obligated to pay to the Plaintiff, as additional refund interest, the amount of KRW 608,643,403 as additional refund interest, and the amount of KRW 51,141,798 as local tax repayment interest, and each of the above amounts, from May 8, 2003 to March 7, 2007, which is the day following the day of service of a copy of the complaint of this case, as the day of service of the complaint of this case, to March 7, 2007, the amount of KRW 5% per annum as prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified and all of them are accepted, and it is so decided as per Disposition.

Additional Payment of National Tax and Repayment Interest of Local Tax

(Amount-unit: won)