Seoul Central District Court 201 Gohap72412 ( October 10, 2012)

Claim for the refund of value-added tax shall be made in accordance with the procedures of party litigation, not civil litigation.

A claim for the refund of value-added tax is not a civil lawsuit, but a party lawsuit is filed and tried to the Seoul Central District Court, and there is an error in violation of exclusive jurisdiction, and during that process, it is difficult to see that the plaintiff's intentional or gross negligence or transfer to the plaintiff is illegal and thus dismissed, and this case must be transferred to the competent court.

2012Na61201 All proceeds

AA Industry Development Corporation

Korea

Seoul Central District Court Decision 201Gahap72412 Decided July 10, 2012

April 9, 2013

May 2, 2013

1. Revocation of a judgment of the first instance;

2. The case shall be transferred to the Seoul Administrative Court.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 20 million won and 20% interest per annum from the day after the delivery of the complaint of this case to the day of full payment.

1. The summary of the case and the facts premised on the case

A. Case summary

In this case, the Plaintiff, and BBC Co., Ltd. (hereinafter referred to as “BBC”) received attachment and assignment orders for the right to claim the return of value-added tax imposed on the Defendant according to the final return of value-added tax donation in 2010, and BC thereafter filed an appeal by the Plaintiff on the ground that the Defendant’s correction and notification of value-added tax based on the revised return of value-added tax that was later filed by the Plaintiff cannot affect the Plaintiff’s right to claim the return of the value-added tax refunded by the Plaintiff’s attachment and assignment order, and that the Plaintiff sought the return of the value-added tax refunded by BBC. The first instance court dismissed the Plaintiff’s claim on the ground that the Plaintiff’s initial value-added tax return of BBC was absorbed into and extinguished in the last revised return filed by the first instance court

B. Presumed factual basis

This Court's explanation is the same as '1. Basic Facts' among the reasons for the judgment of the court of first instance, and sees them as they are in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on the legitimacy of the judgment of the court of first instance

A. The plaintiff's assertion

The plaintiff asserts that the third debtor, as a whole, is liable to pay 0000 won, which is the initial tax amount refunded, and the delay damages therefor, to the plaintiff as a whole creditor for the following reasons:

1) The instant trust is merely to secure all the claims, such as the claim for construction price, which the Plaintiff, the first beneficiary, has against BBC, and it cannot be deemed that the ownership or right to dispose of the instant trusted real estate was transferred to the Plaintiff, and thus, BBC did not constitute “supply of goods subject to value-added tax”. However, BBC filed a false revised return on the ground that there was a supply of the instant trusted real estate to the Plaintiff for the purpose of evading large amount of debts against the Plaintiff or covering money, and the Defendant’s disposition based on the revised return on the instant revised return was significant and apparent, and thus, the right to claim the refund refund of this case still remains valid.

2) The Plaintiff’s claim attachment and assignment order with respect to the right to claim the refund of this case was finalized around April 28, 2010, and BBC’s refund of value-added tax on July 26, 2010 was finalized at KRW 000 according to the final return of BBC on July 26, 2010, and the claim for refund of value-added tax was already transferred to the Plaintiff according to the instant assignment order that became final and conclusive as above, and it cannot be deemed that the Plaintiff did not affect the claim for refund of value-added tax that was already transferred to the Plaintiff or that the claim for refund of refund of value-added tax was extinguished passively on the ground that OOC reported the revised return of value-added tax.

(b) Nature of public law refund under the Value-Added Tax Act;

Article 17(1) of the Value-Added Tax Act provides that "The amount of value-added tax payable by an entrepreneur is the amount calculated by deducting the amount of tax under each of the following subparagraphs (hereinafter referred to as "purchase tax amount") from the amount of tax for the goods or services supplied by him/her." However, the above provision provides that input tax exceeding the output tax amount shall be refundable (hereinafter referred to as "tax amount for refund"), and that "the amount of tax for the goods or services used or to be used for one of his/her own business" under subparagraph 1 and 2 of Article 24(1) provides that the amount of tax payable by the entrepreneur shall be refunded to the entrepreneur under the conditions as prescribed by Presidential Decree, for each taxable period, at least 30 days after the expiration of the period for taxation, and the amount of tax payable by the entrepreneur under Article 24(1) of the Enforcement Decree of the Value-Added Tax Act shall be deducted from the total amount of tax payable by the entrepreneur under the former Act and subordinate statutes, whichever is applicable.

(c) Exclusive jurisdiction over administrative cases;

With respect to party litigation in public law, the administrative court having jurisdiction over the location of the administrative agency concerned becomes an exclusive court of the first instance. Article 7 of the Administrative Litigation Act provides that the administrative litigation shall be transferred to the competent court by applying Article 34(1) of the Civil Procedure Act in cases where the administrative litigation has been wrong without the plaintiff's intention or gross negligence, and that the transfer to the competent court is desirable in terms of remedy for rights or litigation economy of the parties, and that the transfer to the competent court is desirable in cases where the plaintiff has to bring the case into civil litigation without intention or gross negligence. If the plaintiff has jurisdiction over the administrative litigation at the same time, it shall be examined and judged through administrative litigation, and if it does not have jurisdiction over the administrative litigation, it is difficult for the competent court to have jurisdiction over the administrative litigation, and even if it has already been brought into administrative litigation, it shall be transferred to the Seoul High Court with the procedure and period of filing a lawsuit, or without any disposition subject to administrative litigation, and it shall be transferred to the Seoul High Court with jurisdiction over Samsung High Court's decision 905 and so long as it is unlawful.

3. Conclusion

If so, the judgment of the first instance shall be revoked, and the case shall be transferred to the Seoul Administrative Court.