Whether or not there is a claim for repayment from the nominal business owner of the nominal name;

Even if the actual business operator paid taxes on the tax assessment that was made by the nominal lender, the legal effect of the payment belongs to the nominal business operator, so the right to claim the refund of the amount overpaid or erroneously paid value-added tax shall be deemed the nominal business operator.

The contents of the judgment are the same as attachment.

Article 51 (1) of the Framework Act on National Taxes

2017Guhap69237 Claim for Refund of Value-Added Tax

KimA

Korea

January 17, 2019

February 15, 2019

1. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) the amount calculated by applying the respective ratio of 5% per annum fromO.O.O. to February 15, 2019, and 15% per annum from the following day to the date of full payment.

2. The remaining claims of the Plaintiff (Counterclaim Defendant) and the counterclaim claims by the Defendant (Counterclaim Plaintiff) are dismissed, respectively.

3. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Plaintiff (Counterclaim Plaintiff).

4. Paragraph 1 can be provisionally executed.

Cheong-gu Office

The principal lawsuit: the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) pays to the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) xx,xx,xx and any amount calculated by the ratio of 15% per annum from the day following the day on which the duplicate of the complaint in this case is served to the day of complete payment.

Counterclaim: The plaintiff shall pay to the defendant the amount calculated by the ratio of 15% per annum from the day following the day of service of a copy of the counterclaim of this case to the day of complete payment.

The principal lawsuit and counterclaim shall be judged together.

1. Basic facts

A. The plaintiff is a person registered as a business operator of a restaurant (hereinafter referred to as "the place of business of this case") located in OO as OO(OB).

B. As to the instant place of business, the Plaintiff reported to the head of a AAA tax office on October 2013, O.O. 2013, xx,xx,xx, O. 2014, O. 2013, x,x,x,x,x, andx, x, x, x, x, x, and x, 2014, the amount of value-added tax payable for the first term portion of 2014, O. 2014, x, x, x, x, x, and x, 2014, respectively. In addition, the Plaintiff reported to the director of a BB tax office on O. 203, 2014, x, x, x, x, x, x, x, O, 2015, O. 2014, O. x, 2014.

C. On October 2015, the Plaintiff filed a claim against the head of O.O.O.a. with the director of the tax office for rectification that “the Plaintiff is merely a nominal name holder of the instant workplace and that it is an actual business operator, and thus, the value-added tax and the integrated income tax are imposed on CC.” However, the director of a tax office refused the Plaintiff’s request for correction on O.O.O. on 2015 (hereinafter “instant refusal disposition”).

D. The Plaintiff, who is dissatisfied with the instant refusal disposition, filed an appeal with the Tax Tribunal onO.O.O. on October 2015, and received O.O. decision of dismissal on October 2016, and filed a lawsuit seeking the revocation of the instant refusal disposition with the Suwon District Court on O.O.O. 2016 (hereinafter referred to as the “related lawsuit”).

E. On the other hand, the court of the first instance rendered a judgment revoking the rejection disposition of this case (U.O. 200 U.S. District Court Decision 200OOOOOOO) on the premise that the Plaintiff’s operation of the instant workplace alone or jointly was illegal, since it is difficult to see that the Plaintiff is the subject of the ownership of the business in the instant workplace.

F. The lower court appealed to the Seoul High Court. On October 1, 2017, the appellate court recommended the head of O.O. Aa. to make the head of the tax office ex officio revoke the imposition of each value-added tax for the first period between the second period of 2013 and the second period of 2014 and each global income tax for the second period of 2013 and 2014. Accordingly, the c.C. head of the tax office, who is the tax office having jurisdiction over the location of the instant place of business, issued the above imposition of value-added tax, and the b. head of the tax office, who is the tax office having jurisdiction over the Plaintiff’s domicile, revoked each of the above imposition of global income tax (the lawsuit related to the lawsuit was

[Reasons for Recognition] The absence of dispute or significant facts in this court, each entry in Gap evidence 1 to 3, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

Since the instant rejection disposition is revoked in the course of the proceeding of the pertinent lawsuit and the Plaintiff’s liability to pay the value-added tax is no longer nonexistent, the Defendant is obligated to return the value-added tax amount imposed at the instant workplace and paid by the Plaintiff as unjust enrichment x,x,xx, and delay damages therefor.

B. Defendant

The value-added tax related to the place of business of this case, which was paid under the name of the Plaintiff during the period from OO to O in 2015, which was confirmed as the actual business operator at the place of business of this case, from OO in 2013 to O in 2015, is the actual payer of the value-added tax. However, as of OO in 2018, LCC held that the amount in arrears against the Defendant was xxxx,xx, and the Defendant holds a tax claim corresponding to the above amount in arrears as the preserved claim against LCC. In addition, in cases where the Plaintiff is entitled to the value-added tax paid under the name of the Plaintiff, the Plaintiff gains profits equivalent to the above amount in relation to the above value-added tax from the actual business operator at the place of business of this case without any legal ground, while LCC bears the tax liability equivalent to the amount in relation to the above value-added tax amount. Furthermore, LCC holds the right to request the return of unjust enrichment corresponding to the above amount in subrogation against the Defendant.

3. Determination

A. Determination on the main claim

1) Whether the plaintiff is the person entitled to claim the repayment

Article 51(1) of the Framework Act on National Taxes provides that if a taxpayer erroneously pays or overpaid the amount of national tax, additional dues, or disposition fee for arrears, or there is an amount of tax to be refunded under the tax-related Acts (if there is any amount of tax to be deducted from the amount of tax refundable under the tax-related Acts, referring to the remaining amount after deducting the amount of tax to be deducted), the tax office shall immediately determine such amount of tax erroneously paid, overpaid, or refundable amount as a refund of national tax. Article 51(1) of the Framework Act on National Taxes declares that the amount of tax erroneously paid or overpaid (hereinafter referred to as “amount overpaid or erroneously paid”), which has already been determined the existence and scope of unjust enrichment as unjust enrichment, is consistent with the definitions and fairness of immediately returned amount by the State without waiting for the application for refund by the taxpayer to the taxpayer. Therefore, where the tax office imposed tax on the business title separately, the legal relationship between the business title and the tax authority is established under the legal relationship between the business title and the actual payer, but the legal relationship between the tax payer and the actual payer should not be deemed invalid.

From the first to the second half of 2013, which is the taxable period of the value-added tax subject to the instant refusal disposition, there is no dispute between the parties as to the facts that the Plaintiff was the business title of the instant workplace and the other party to the tax disposition. Therefore, in light of the above legal principles, even if, as alleged by the Defendant, GCC, other than the Plaintiff, is the actual business owner of the instant workplace and is the entity directly paid or borne the payment of the value-added tax in the said taxable period, it is reasonable to view the right to claim the amount of value-added tax as the Plaintiff, the business title, as the Plaintiff

2) Specific scope of refund

A) Principal

As seen earlier, a taxpayer has the right to file a claim for refund with respect to the amount of erroneous payment, the existence and scope of which are determined, in the form of return of unjust enrichment. However, in the case of value-added tax, the method of filing a return is applied, and the existence and scope of the tax amount or the tax amount are determined by the final return of

갑 제3호증, 을 제7호증의 1 내지 4의 각 기재 및 변론 전체의 취지에 의하면, 부당이득 반환으로서의 부가가치세 환급이 문제되고 있는 이 사건에서, 이 사건 사업장의 사업명의자인 원고에 대하여 부과되어 원고 명의로 납부되었다가 과세관청의 경정결정으로 그 부과가 취소된 부가가치세액은 2013년 제1기분 xx,xxx,xxx원, 2013년 제2기분 xx,xxx,xxx원, 2014년 제1기분 xx,xxx,xxx원, 2014년 제2기분 xx,xxx,xxx원인 사실을 인정할 수 있다. 위 인정사실에 의하면, 과세관청의 위 경정결정으로 2013년 제1기분 〜 2014년 제2기분 부가가치세액 합계 xxx,xxx,xxx원(= xx,xxx,xxx원 + xx,xxx,xxx원 + xx,xxx,xxx원 + xx,xxx,xxx원)에 관하여 원고의 납세의무가 존재하지 않는 것으로 확정되었으므로, 피고가 원고에게 부당이득으로 반환하여야 할 환급금 원금은 위 xxx,xxx,xxx원이다.

(b) damages for delay

Tax refunds constitute unjust enrichment received or held by the State without any legal cause even though tax liabilities existed from the beginning or even if they were extinguished thereafter, and the obligation to return unjust enrichment is an obligation with no fixed deadline, and a beneficiary is liable to compensate for losses incurred due to delay from the date following the date on which the claim for performance was filed (see, e.g., Supreme Court en banc Decision 2017Da242409, Jul. 19, 2018).

As the Plaintiff’s return of unjust enrichment to the Defendant, it is clear in the record that the instant complaint filed a claim for the refund of value-added tax was served on O.O.O. on the Defendant, and the Defendant is obliged to pay damages for delay from O.O.O. on the following day to the Defendant.

3) Sub-decisions

Therefore, the defendant is obligated to pay to the plaintiff the amount of the principal of the above refund xx,xx,xx and the damages for delay calculated at the rate of 5% per annum prescribed by the Civil Act until February 15, 2019, which is the day following the day on which a copy of the complaint of this case was served on the plaintiff, and the defendant's claim for the principal of the refund and the damages for delay calculated at the rate of 15% per annum as stipulated by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment (the plaintiff's claim for the principal of refund and the damages for delay exceeding the above recognized limit is rejected).

B. Determination on the counterclaim

(i)the need for conservation claims and conservation;

According to the written evidence Nos. 2 and 5 of this Court, the order for submission of the tax information by O.O.O. on DD viewing of this Court and the purport of the entire pleadings, the Defendant, as of O.O., held that the Defendant had a total of xx, xx, and xx members with respect to Standing as of October 2018, the Defendant had a total of xx, xx, xx, and xx tax claims against Standing during the period from 2017 to 2018, and there is no other active property in the name of HCC. Furthermore, the fact that HCC separately requested the Plaintiff to return the value-added tax refunded on the instant place of business is not discovered. In full view of the above facts and circumstances, the instant counterclaim claim with the nature of subrogation of the obligee exists.

As to this, the Plaintiff’s defense to the effect that the counterclaim in this case is unlawful because it did not satisfy the requirements for subrogation of creditors, since it was not in insolvent, such as the spouse and the operation of the place of business in the name of his child, etc. However, the Plaintiff’s defense is not acceptable on the ground that the statement of evidence Nos. 6 through 11 alone is insufficient to acknowledge the facts alleged by the Plaintiff, and

2) Whether subrogation claims exist

The Defendant claims the right to claim the refund of value-added tax against the Plaintiff as a subrogation claim. However, the Plaintiff’s claim for subrogation as above should be premised on the refund of value-added tax from the Defendant. However, as the Plaintiff’s principal lawsuit seeking the refund of value-added tax was filed by the Defendant against the Plaintiff’s principal lawsuit seeking the refund of value-added tax, the Plaintiff was actually unable to claim the refund of value-added tax from the Defendant, and thus, there was no subrogation claim

3) Sub-decisions

Therefore, the defendant's counterclaim which has the nature of subrogation cannot be accepted as it does not exist in subrogation claim.

4. Conclusion

Thus, the claim of the principal lawsuit is justified within the scope of the above recognition, and the remainder of the principal lawsuit and the defendant's counterclaim are dismissed as they are without merit.