Seoul Central District Court 2012 Gohap53281 ( October 15, 2013)

A claim for the refund of value-added tax shall follow the procedures of a party suit.

The taxpayer's claim for the refund of value-added tax against the country corresponding to the obligation to pay the refund of value-added tax to the taxpayer should not be a civil lawsuit but be subject to the procedure of party litigation as provided in Article 3 (2)

2013Na2003918 Preemptives

AA Land Trust Corporation

Korea

Seoul Central District Court Decision 2012Gahap532881 Decided January 15, 2013

April 23, 2013

May 9, 2013

1. Revocation of a judgment of the first instance;

2. The case shall be transferred to the Suwon District Court.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 5% interest per annum from September 12, 2012 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in each of the statements in Gap 1 through 5 (including paper numbers), Eul 1 through 4.

A. BB Co., Ltd. (hereinafter referred to as "non-party company") is the implementer of the new project of the CCC (hereinafter referred to as "the project in this case") of OO-Gu OO-dong 324-4, and DD Construction Co., Ltd. (hereinafter referred to as "D Construction") is the contractor of the new project, and the plaintiff is the trust company that received the project site and apartment of the new project.

B. On March 24, 2011, Nonparty Company: (a) changed the name of the operator of the instant project between DD Construction and D Construction to the Plaintiff; and (b) drafted a written agreement to transfer all the claims for refund of value-added tax arising in relation to the instant project to the Plaintiff.

C. On April 4, 2012, the non-party company submitted to the director of the tax office 00 under the Defendant’s control (hereinafter “the director of the tax office”) a letter of request for transfer of national tax refund to the Plaintiff with the content that the non-party company transfers the amount of the value-added tax refunded for the first period of 201

D. On July 25, 2012, Nonparty Company reported to the director of the tax office of 00 on July 25, 2012 the amount to be refunded to the Plaintiff during the first taxable period of 2012, as the value-added tax amount, and submitted to the director of the tax office 00th of July 26, 2012 a request for transfer of the national tax refund to the Plaintiff.

E. On July 31, 2012, the non-party company merged EE (hereinafter referred to as “E”), and completed the registration of the merger on August 3, 2012, and the non-party company succeeded to the above amount of default due to the existence of OOO's default tax (hereinafter referred to as “instant default tax”) in EE at the time of the merger.

F. On August 27, 2012, the head of the tax office issued a notice of appropriation for the refund of national taxes to the non-party company on September 11, 2012 after appropriating the instant amount of delinquent taxes (hereinafter “the instant appropriation”) with the instant national tax refund on August 27, 2012. On September 11, 2012, the head of the tax office paid the remainder amount of OO that remains after appropriating it to the Plaintiff.

2. Whether a judgment of the court of first instance has been in violation of exclusive jurisdiction;

In light of the content, form, legislative intent, etc. of the Value-Added Tax Act, the State’s duty to pay the amount of value-added tax refundable to a taxpayer is directly generated by the provisions of the Value-Added Tax Act regardless of whether the State has actually paid the amount of tax collected excessively from a taxpayer in any taxable period. The legal nature thereof is reasonable to deem that the taxpayer’s obligation to pay the amount of tax refundable to a taxpayer is not a duty to return unjust enrichment recognized for property adjustment between a beneficiary and a loss under the concept of justice and fairness, but rather a duty under public law, its existence or scope is specifically determined by the Value-Added Tax Act and is specifically determined by the relevant laws and regulations, and is specifically recognized from a tax policy perspective. Therefore, the State’s duty to pay the amount of value-added tax refundable to a taxpayer ought to comply with the procedures for a party litigation provided for in Article 3 subparag. 2

Article 9(1) of the Administrative Litigation Act provides that "the court of first instance having jurisdiction over the location of the defendant shall be the administrative court having jurisdiction over the location of the defendant." Article 40 of the same Act provides that "In the case of the defendant, the state or public organization shall be deemed the location of the defendant." Thus, the administrative case, including the party litigation, shall be deemed to fall under the exclusive jurisdiction of the administrative court. Therefore, the deliberation and judgment of the general district court, which is not the administrative court, shall be subject to the exclusive jurisdiction of the administrative court." However, the lawsuit of this case is a claim for payment of value-added tax refund, which falls under the party litigation of the Administrative Litigation Act, and is filed with the Seoul Central District Court without the jurisdiction of the administrative case, and thus, it is unlawful in violation of the exclusive jurisdiction, and it is hard to see that the lawsuit of this case falls under the case where the plaintiff has intention or gross negligence, or it is obvious that the plaintiff will be dismissed because it is illegal (see Supreme Court Decision 95Da2890, May 30, 1997).

In addition, with respect to party litigation in public law, the administrative court having jurisdiction over the location of the administrative agency concerned shall be the exclusive court of the first instance. Since the fact that the location of the head of the Suwon Tax Office, which is the administrative agency concerned in this case, is obvious in the records, the Suwon District Court, which has jurisdiction over Suwon District, shall be the competent court of the first instance.

3. Conclusion

If so, the judgment of the first instance shall be revoked pursuant to Article 419 of the Civil Procedure Act, and the case shall be transferred to the Suwon District Court which is the competent court.