Fraudulent Gains;

Unless the Enforcement Decree of the Revenue and Gift Tax Act or the Enforcement Decree of the Revenue and Gift Tax Act provides a separate definition on the concept of "diversive telephone" or "personal portable communications", it shall be interpreted in accordance with the law separately from the service of this case, as in the Telecommunications Business Act or the Radio Regulations.

Articles 3 and 3 of the former Stamp Tax Act (amended by Act No. 9917, Jan. 1, 2010; hereinafter the same shall apply) (Tax Documents and Amount of Tax)

2014 Gohap565014 Undue gains

In addition to the service, it shall be divided into ‘ Mobile Telephone', ‘personal portable Telephone', ‘Mo-200', etc.

As the former was amended by Presidential Decree No. 20669 on February 29, 2008, 'cellable telephone' was 'cellable telephone'.

The term "r," "personal portable phone," "Korean mobile communications (IMT-200)" as "IMS," and these mobile communications are located below the upper concept of "MT-200," and the Presidential Decree of November 23, 2012.

As amended by "24198, mobile communications only include cellular communications in service column," " Mobile communications", "personal portable communications (PCS) and IMT200, etc." (Article 90(1) and each of them).

Table 8) In light of the progress of such amendment, the Radio Waves Act also moves the instant service to a mobile phone or

It is known that the personal portable telephone is regulated separately from the personal portable telephone.

E) former Enforcement Decree of the Radio Waves Act (amended by Presidential Decree No. 22605, Dec. 31, 2010)

[Attachment 14-2] Restrictions on the type approval, type registration, and application fees for the registration of electromagnetic compatibility; column

(b) Personal portable telephone (PCS) radio equipment, (c) mobile communication equipment;

- - Other

The above three services are classified by stipulating "radio Equipment (IMT-200)".

F) The interpretation of tax laws is to expand the interpretation without reasonable grounds under the principle of no taxation without law.

B. Interpretation by analogy is not allowed (Supreme Court Decision 2008Du11372 Decided August 20, 2009).

See, see, e.g., Supreme Court Decision 2006Da15488 delivered on May 2, 201

subsection (1) of the Telecommunications Business Act, the Telecommunications Business Act, which does not have a separate definition provision;

To interpret the service separate from the service in this case as in the laws and regulations on radio waves, the legal stability; or

It conforms to the principle of strict interpretation required by the no taxation without law.

(g)the mobile phones essentially similar in that they use radio waves established by the State;

Information and Communication Technology Development to treat personal portable communications and the instant services separately.

Pursuant to the laws and regulations related to technology, such as information and communications business, has been reflected in a timely manner.

B. A tax law, which is a tax law, and the Enforcement Decree thereof, are a problem arising from the failure to reflect it.

In this regard, it is also not reasonable to take the disadvantage of taxpayers due to the absence of such legislation.

3) Therefore, without any legal ground, the defendant's "amount paid" out of the claim amount in attached Form 1 from the plaintiff.

Since the money was paid as stamp, there is a duty to return it to the plaintiff with unjust enrichment.

(c)

B. Scope of return of unjust enrichment

1) A tax refund cannot be paid even if the tax liability does not exist from the beginning or has ceased to exist thereafter.

be deemed to constitute unjust enrichment received or held by the State without legal grounds; and

The additional dues shall have the nature of legal interest on unjust enrichment. In this case, additional dues on refund shall be paid.

The provisions of the tax law on the contents shall apply to Article 748 of the Civil Act on the scope of return of unjust enrichment.

Since additional dues have the nature as a special rule, they are good faith and bad faith of the country where the beneficiary is the beneficiary.

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shall become final and conclusive, regardless of the date of commencement and rate specified in each provision concerning its additional charges.

The obligation to return unjust enrichment is an obligation under which the time limit is not fixed, and the beneficiary requests performance.

A taxpayer is liable for compensating for damages for delay from the day following the day of such delay.

(1) After filing a claim for the performance of a tax refund, a refund with the nature of legal interest;

A claim for gold and a claim for damages for delay arising from a delay shall arise concurrently, and a taxpayer shall have the right to

In accordance with the new choice, one of them may be exercised (Supreme Court Decision 2009No. 10, Sept. 10, 2009).

209Da11808).

2) The interest rate on the national tax refund additional dues shall be as amended by Act No. 10219, Mar. 31, 2010.

Article 52 of the former Act and the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Strategy and Finance No. 142 of March 31, 2010)

Article 13-2 of the Ministry of Strategy and Finance and the notice (No. 2009-6) of the Ministry of Strategy and Finance shall be made annually until March 31, 2010.

3.4% and Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Strategy and Finance No. 205 of April 11, 201)

Article 13-2, according to the Ministry of Strategy and Finance Notice (No. 2010-5), 4.3% per annum until April 1, 2011, and the same Act.

Enforcement Rule (Amended by Ordinance of the Ministry of Strategy and Finance No. 262, Feb. 28, 2012) Article 13-2

3.7% per annum until February 29, 2012 and the Enforcement Rule of the same Act (Ordinance of the Ministry of Strategy and Finance No. 320 on March 23, 2013)

According to Article 19-3 of the previous Act, the plaintiff's claim for the refund of the stamp tax to the branch tax office.

Korea until August 9, 2012, 4.0% per annum.

3) If so, the defendant shall return to the plaintiff with unjust enrichment as seen earlier.

on the following day of the payment of each stamp tax with respect to each of the above amounts and each of the above amounts;

Each "date of pre-payment" means a change in the interest rate for a refund from the date stated in the "date of pre-payment" or the plaintiff claims a refund

Each "ended date" shall be calculated by the interest rate stated in the column "each interest rate prescribed by the Framework Act on National Taxes" until the date on which the statement is made.

There is a duty to pay the refund additional charges, and thereafter the purport of the claim and the reasons for the claim of this case

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The year prescribed by the Civil Act until January 13, 2015, which is obvious that the filing date of a written application is the date on which it is served to the defendant.

5%, 20% per annum prescribed by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the following day to the date of full payment.

There is an obligation to pay damages for delay calculated in proportion thereto.

5. Conclusion

Thus, the plaintiff's claim of this case is reasonable, and it is so ordered as per Disposition.

shall be ruled.

주식회사 @@@

Korea

1. The defendant's interest rate "from the date of entry in the column of "date of pre-payment" to the plaintiff, and from the date of entry in the column of "date of pre-payment" to the date of entry in the column of "date of expiry" for each of the above amounts," "interest rate" to the plaintiff.

- 2-The interest rate shall be paid at each rate of 20% per annum from January 14, 2015 to the day of full payment.

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

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order of the Gu office.

1. Facts of recognition;

A. The Plaintiff is a key telecommunications business entity under the Telecommunications Business Act, whose purpose is to provide telecommunications services, including the service using radio frequencies, and is designated by the Ministry of Information and Communication as a key telecommunications business entity of IMT 200 services (IMT-200, International Mobilecom 200, hereinafter “instant service”).

B. The Plaintiff paid stamp taxes from December 2009 to December 2010 on the application form for subscription received at the time of providing the instant service to the customer, as indicated in the “amount of payment” column in attached Form 1.

C. On August 9, 2012, the Plaintiff filed a request for correction for the refund of stamp taxes on August 2009 through July 2012, when the application for subscription to the instant service did not correspond to the stamp tax document under the Stamp Tax Act, which was erroneous and paid by the Plaintiff. However, the head of a tax office having jurisdiction over the division refused the refund of stamp taxes on September 3- 3- 19, 2012, and the Plaintiff filed a request with the Tax Tribunal for a trial against the said disposition, but was dismissed on December 30, 2013. The Plaintiff’s request was dismissed on December 30, 2013. The fact that there was no dispute with the recognition, the entries in Gap’s 1, 3, or 7 evidence (including each number, hereinafter the same shall apply) and the purport of the entire pleadings.

2. The parties' assertion

A. The plaintiff's assertion

In light of the principle of strict interpretation derived from the principle of no taxation without law, etc., the instant application for subscription to the instant service cannot be deemed as a stamp tax document as stipulated in the Enforcement Decree of the Revenue and Gift Tax Act and the Enforcement Decree of the Revenue and Gift Tax Act. Therefore, the Defendant is obliged to return the amount equivalent to the stamp tax paid by the Plaintiff to the Plaintiff as unjust enrichment.

B. Defendant’s assertion

This case’s service is also included in mobile phone or personal portable communications service, in view of the legislative intent of the stamp tax law that sets forth an application for telephone subscription, which is a document for acquisition of assets enabling the use of public information set by the State, as the object of stamp tax, because it is merely a distinction according to the improvement of functions, and there is no difference in the intrinsic nature of transmitting data, such as voice call, and text, other than voice call, using radio waves; and considering the legislative intent of the stamp tax, etc., the instant service is also included in mobile phone or personal portable communications service. Even if the obligation to return unjust enrichment to the Defendant, as alleged by

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3. Relevant statutes;

Attached Table 2 shall be as stated in the relevant statutes.

4. Determination

A. Whether the obligation to return unjust enrichment is established

1) Article 3 (1) 9 (b) of the former Stamp Tax Act provides that "a contract or an application for subscription prepared to use services prescribed by Presidential Decree, among facilities-based telecommunications services under Article 4 (2) of the Telecommunications Business Act, as a document for continuous and repeated transaction, shall be paid for stamp tax, namely, a taxable document." Article 4 (1) 2 of the former Enforcement Decree of the Stamp Tax Act provides that "a contract or an application for subscription prepared to use services prescribed by Presidential Decree" among facilities-based telecommunications services under Article 4 of the Telecommunications Business Act refers to a contract or an application for subscription prepared to use mobile or personal mobile communications services among facilities-based telecommunications services under Article 4 of the Telecommunications Business Act."

2) In full view of the following circumstances, where there is no dispute between the parties, or where Gap evidence Nos. 2 and the purport of the entire pleadings is acknowledged, the application for the instant service is intended to use the wireless telephone or personal portable communications service among the key telecommunications service under Article 4 of the Telecommunications Business Act, Article 3 of the Job Offer Tax Act, and Article 4 subparag. 2 of the Enforcement Decree of the former Enforcement Decree of the Telecommunications Business Act.

It is judged that the contract or application form prepared is not a "written contract or application for accession."

A) Mobilephones, personal portable communications (PCS), and the instant services are radio frequencies (80MHz, personal portable communications: 1,700-1,800 MHz, and 2GHz: 2GHz), as well as communications technology - 5- ( Mobile phone, personal portable communications: TMA or CD: TMA, TR2000 or W-W-SMA: Mobile phone: 9.6Kbps, personal portable communications: 14.4 Kbps, 14.4 Kbps, 2Mps, 1.23 MHzs, 20 MHzs, 20 MHzs, 30 MHzs, 20 MHzs, 3GHzs, 3GHzs, 3GHzs, 5-2GHzs, 5-2GH services: Telecommunications, data mobile text messages, etc., e-mail, e-mail, data-mail, image, image, etc.

B) Article 4(2) of the former Telecommunications Business Act provides that a key telecommunications business is a business that provides telecommunications stations with telecommunications line equipment and facilities and provides telecommunications stations with the type and contents prescribed by Presidential Decree, such as telegraph and telephone services (hereinafter referred to as "key telecommunications services"), taking into account the impact on the public interest and national industries, necessity for stable provision of services, etc. The former Enforcement Decree of the Telecommunications Business Act (amended by Presidential Decree No. 22424, Oct. 1, 2010) stipulates the types and contents of key telecommunications services under the Telecommunications Business Act, and provides services after being assigned the frequency of frequencies under Article 11 or 12 of the Radio Waves Act: (a) by establishing a radio station using a radio station using the frequency assigned under Article 12 of the Radio Waves Act, and by using it, transmitting or receiving electronic signals, such as voice, data and images, without changing the contents or form thereof.

한편, 구 전기통신사업 회계정리 및 보고에 관한 규정 제16조 제1항은 회계분리를 위한 전기통신역무를 분류하면서 제2호에서 구 전기통신사업법 시행령 제7조 제2호 와 같은 내용을 규정하고 있는데, 위 규정의 위임에 따른 구 전기통신사업 회계분리기 준 제3조 제2호는 '주파수를 할당받아 제공하는 역무'에 "가. 이동통신(셀룰러 또는 PCS)서비스 : 800MHz 또는 1.7〜1.8GHz 대역의 주파수를 이용하여 이동 중에 송수신 할 수 있는 설비를 가진 자에 대하여 전용의 교환설비를 이용하여 음성등을 송신하거

- 6 -나 수신하는 이동통신서비스, 나. 이동통신(IMT2000)서비스: 1.8〜2.2GHz 대역의 주파수를 이용하여 제공하는 이동통신서비스"라고 구분하여 규정하고 있다.

C) In addition, Article 2(2)3(c) of the Enforcement Decree of the Telecommunications Business Act stipulates only the mobile telephone service, personal portable communications service and radio call service among key communications service, until amended by Presidential Decree No. 21060 on October 1, 2008, with respect to telephone service for the disabled persons, among the details of universal service, only "the instant service" was amended by Presidential Decree No. 21060 on October 1, 2008.

D) Under the former Enforcement Decree of the Radio Waves Act, the service classification is divided into ‘the mobile phone' and ‘personal mobile phone' before the amendment by Presidential Decree No. 18488 on July 24, 2004 (Article 53(1) and attached Table 4), and the amendment on July 24, 2004 was made.

The presiding judge