Seoul Central District Court-2018-Gohap-4210 ( December 07, 2018)

Return of unjust enrichment by considering the timing of outflow from the account book as the time of omission in sales;

The time of outflow of the omission in sales is the time of entry in the account book, which is the time of omission in sales, and in such cases, the global income tax reported and paid by the plaintiff shall be reported and paid with the limit of the processing period, and shall be returned to the plaintiff.

Article 741 of the Civil Act

2019Na200112 Return of Unjust Enrichment

AA

Korea

October 24, 2019

November 21, 2019

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the subsequent order of payment shall be revoked.

With respect to KRW 2,207,576,184 and KRW 312,459,720 among the Plaintiff, the Defendant shall pay 5% per annum from October 1, 2013 to November 21, 2018, and 15% per annum from the following day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. 10% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 2,207,576,184 won with 5% interest per annum from October 1, 2013 to the delivery date of a copy of the complaint of this case and 15% interest per annum from the following day to the day of complete payment.

1. Basic facts

(a) Status of parties;

Aaaa Co., Ltd. (hereinafter referred to as "Co., Ltd.") was liquidated on September 30, 2008 on December 8, 2010 after transferring Indonesia-related business to BBS (hereinafter referred to as "BB") as a corporation of the United States of America, a business that provides domestic and foreign manufacturers with purchase services for products produced by them.

AAA was the largest shareholder of AA and CC.

(b) bonus disposal, etc. for AA;

1) Aaa, while conducting clothing purchase agency business, has sales 5,281,19,49,491 won before 2004, sales 261,967,776 won in 2005, sales 137,068,235 won in 206, among sales bb for clothing purchase agency business;

In 2007, total amount of KRW 7,184,765,400, including sales amount of KRW 944,684,213, and sales amount of KRW 559,845,685, and total amount of KRW 7,184,765,400, not sales account, were appropriated in the foreign currency goods deposit account (debt)

2) Aaa from April 2008 to June 2008 of the same year deposited money deposited in the account of Aaaa in several accounts, etc., and immediately withdrawn this money, and then deposited the money into the account of Aaaa through another account (the account in the name of AA or the account of Dddddddddd, etc.). A around that time, the sum of money deposited in the account of Aaa was approximately KRW 7.1 billion, and most of them were deposited in the account of Aaaa by the foregoing method. Aaa treats that the money deposited as above was deposited in the account of the representative of the account.

3) BB under the Defendant’s control deemed that the said deposited money ( deemed as KRW 7,184,765,400) from the account in Aaa was out of the company from April 2008 to June 2008 at the time of its withdrawal, and that the said money was not known as a bonus for AA on May 13, 2013, and disposed of the said amount as a disposal of the said amount, and notified AAA of the change in the amount of income on July 9, 2013.

(c) Claim, etc. for correction by AA;

AA received the notice of the change in the above amount of income and paid KRW 2,390,684,490 to BB for the year of 2008 following the change in the amount of income (hereinafter referred to as “instant return and payment”). The Plaintiff filed a claim for correction for refund of KRW 2,367,40,000 out of the amount of additional tax paid after the Plaintiff filed a claim for refund of KRW 2,367,40,000, but BB rejected the claim.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 7, 8, Eul evidence Nos. 1, 2 and 3, the purport of the whole pleadings

2. Judgment on the main defense of this case

The Defendant asserts to the effect that “AA” can only be contested by means of filing an appeal against the rejection disposition against the global income tax payment claim, and that it cannot seek a return of unjust enrichment against the global income tax already paid by means of civil procedure, and thus, the instant lawsuit is unlawful. However, as global income tax is a tax in the method of tax payment, where the taxpayer’s filing of tax return is null and void as a matter of course due to significant and apparent defects (see, e.g., Supreme Court Decision 2004Da64340, Jan. 13, 2006), it is reasonable to view that the taxpayer may claim a refund by means of a civil lawsuit seeking a return of unjust enrichment. The Defendant’s main defense is not acceptable.

3. Judgment on the merits

A. The summary of the AA’s assertion

Aa A. The amount omitted without recording it in the books among the sales of B B until 2008 is KRW 7,184,765,40 in total, and KRW 6,64,46,842, which was the amount omitted from sales before 2007, was already released from each business year during which aa falsely counted it in the accounts of deposits from foreign currency (debt). Since the exclusion period of imposition of global income tax is five years, the exclusion period of imposition has already expired with respect to the income accrued from bonus from 2004 to 2007 as at the time of the return and payment of the instant tax, and the return and payment of the instant tax on the income with the exclusion period of imposition is null and void due to significant and apparent defects. Nevertheless, the Defendant has the obligation to return the said additional amount of KRW 2,207,576,184 in global income tax from 204 to 207 to 207 to 3086,207,2088, and 307,2081.

B. Determination

1) Relevant legal principles

The global income tax is a tax in the form of tax return, in principle, the taxpayer's tax liability is determined specifically by his/her own determination of tax base and tax amount, and the payment act is the performance of specific tax liability determined by the return, and the local government holds the tax amount paid based on the final tax claim as above. Thus, insofar as the act of the taxpayer's return does not automatically become null and void due to a significant and apparent defect, it cannot be deemed as unjust enrichment. Here, as to whether the act of the taxpayer's return constitutes abruptive invalidation due to a significant and apparent defect, the purpose, meaning, function, and legal remedy for the act of the return should be determined reasonably by considering the specific circumstances that may result in the act of the return individually and reasonably (see, e.g., Supreme Court Decisions 94Da31419, Feb. 28, 1995; 2004Da64340, Jan. 13, 206).

2) Whether there is a defect in the report and payment of the instant case: The time of outflow from the company

The instant report and payment is premised on the fact that KRW 7,184,765,40, which was deposited in the accounts of the CCC, was discharged from all from April 2008 to June 2008, which was the time of its withdrawal, and the liability for global income tax was generated to ACC. However, in light of the following circumstances recognized by comprehensively considering the following facts and the overall purport of the pleadings, it is reasonable to deem that: (a) the total amount of KRW 7,184,765,400, which was omitted from sales from 2004 to 2007, was already released from the accounts of the CCC; and therefore, (b) the period of exclusion from the imposition of global income tax was exceeded. Nevertheless, AA made the instant report and payment in accordance with the disposition of income of the CCC; and (c) therefore, it shall be deemed that there was a defect in the instant report and payment.

A) If a corporation fails to enter its sales in an account book despite a fact of sales, the total amount omitted from sales should be deemed to have been leaked out, barring special circumstances (see, e.g., Supreme Court Decisions 93Nu630, May 14, 1993; 2000Du3726, Jan. 11, 2002). Aa, prior to the sales of 2004, KRW 5,281,19,491, and 261,967,97,777,766, 2006, and KRW 137,068,235, and KRW 94,684,213, total sales revenue of 207, and KRW 200,000,000,000 from the account for foreign currency goods (debts) other than the sales account, barring special circumstances, shall be deemed to have been omitted from the sales account under the above provision of subparagraph 2a (a).

B) The defendant asserts that "aaa has failed to make sales by falsely appropriating sales revenue of not more than 2007 before 207 in the foreign currency deposit account, and has reserved this omitted sales from April 2008." However, it is insufficient to acknowledge the facts of the defendant's assertion only with the partial statement of the decision issued by the Tax Tribunal (Tax Tribunal) No. 4, and there is no other evidence to acknowledge it. Rather, most of the money withdrawn from the account of Aaa to CCC during the above period were immediately deposited in the account of Aaa, and each of the above deposits and withdrawals do not exceed 530,000,000 won. In other words, it is difficult to view that "AA" and "AAA" were deposited in the above account no more than 70,000,000 won and again deposited money of not more than 530,000 won during the above period (see, e.g., Supreme Court Decision 705Da3708, Jan. 7, 2007).

C) According to Article 26-2(1)3 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014), the exclusion period for imposition of global income tax is five years. In addition, when income is disposed of to a person to whom the income accrue, the liability to pay global income tax ( earned income) on the person to whom the income accrues shall be established at the end of the taxable period to which the relevant income accrue pursuant to Article 21(1)1 of the former Framework Act on National Taxes (amended by Act No. 16097, Dec. 31, 2018) (see Supreme Court Decision 2004Du9944, Jul. 27, 2006). The exclusion period for imposition of global income tax is June 1 of the following year after the taxable period from which the global income tax begins (Article 12-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes and Article 70(1) of the Income Tax Act).

Ultimately, the exclusion period of imposition of total of KRW 7,184,765,40 from 2004 to 2007 has expired at the expiration of five years from June 1 of the year following the year 2004 to 2007, which was the taxable period in which the pertinent income was reverted. Accordingly, the exclusion period of imposition of global income tax on each of the above incomes has expired at the latest on June 1, 2013.

3) Whether defects in the instant declaration and payment are significant and apparent

Comprehensively taking account of the following circumstances, the tax return and payment in this case shall have expired with the exclusion period of imposition.

as a return and payment of global income tax on such global income tax, such a defect is serious and null and void as it is apparent.

I should see.

A) If a national tax is not imposed for a period during which a national tax can be imposed pursuant to Article 26-2 of the Framework Act on National Taxes, the taxation authority may not impose any disposition as a matter of principle as well as the imposition disposition, and the tax obligation itself is extinguished (see, e.g., Articles 26 subparag. 3 and 26-2 of the Framework Act on National Taxes and Supreme Court Decisions 200Du6657, Sept. 24, 2002). Nevertheless, if a disposition of imposition is made, the effect is null and void (see, e.g., Supreme Court Decisions 99Du3140, Jun. 22, 1999; 2003Du1752, Jun. 10, 2004). In the instant case, although AA has received the instant return and payment after B’s disposal of income, it is deemed that AA made the instant return and payment in accordance with CCC’s notice of change in the amount of income to CCC, and there is no reason to decide 397Da297.

B) Furthermore, in cases where an administrative agency takes an administrative disposition by applying a certain provision of a law to a certain legal relationship or fact, the legal principle that the provision of the law is not applicable to the legal relationship or fact is clearly stated or the meaning of the affirmative or passive requirement is clear in the language and text of the provision of the law, and as a result, if the administrative agency erroneously interpreted the meaning of the affirmative or passive requirement without any reasonable ground and the relevant disposition is not satisfied or the passive requirement is satisfied, it can be deemed that the defect is objectively obvious (see Supreme Court Decision 2011Du3746, Mar. 20, 2015). The Supreme Court Decision 93Nu630, Jun. 22, 1999, stating that “if the sales amount was not recorded in the books despite the fact of the sales, if the sales amount was not recorded in the books, it shall be deemed that the total omission in the sales amount was leaked, barring any special circumstance, and thus, the above legal principle has already been established by repeating the judgment to the effect that it had already existed basic facts as a report or payment of taxation.

4) Occurrence of unjust enrichment

Ultimately, even though the return and payment of this case are null and void, the defendant was paid 2,207,576,184 won of global income tax from AA on September 30, 2013. Thus, the defendant is obligated to return unjust enrichment of KRW 2,207,576,184 to AA. Therefore, for KRW 2,207,576,184 and KRW 312,459,720 of the above amount, after the delivery of a copy of the complaint of this case, 1,895,16,464 won from 20.17.20% of the above amount, the defendant's claim for unjust enrichment of KRW 2,208,000,000,000 from 10,0000,000 won to 2,000,000 won, 2,017,000 won from 2,015,000 won from the day of delivery of the complaint of this case.

3. Conclusion

Therefore, the claim of AA shall be accepted within the extent of the above recognition, and the remaining claims shall be dismissed on the ground of its reason. Since the judgment of the court of first instance is unfair on the grounds of a different conclusion, the part of the appeal of the court of first instance which partially accepted the appeal of the court of first instance against the defendant corresponding to the above amount ordered to be paid shall be revoked, and the payment of the amount shall be ordered to be made to the defendant, and the remaining appeal of the AA shall be dismissed on the ground