Plaintiff (Attorney Ba-man et al., Counsel for the plaintiff-appellant)

Korea

October 23, 2019

Seoul Central District Court Decision 2017Gahap563316 Decided July 5, 2018

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

The defendant pays to the plaintiff 734,303,760 won with 2.5% per annum from January 6, 2016 to March 6, 2016, 1.8% per annum from March 7, 2016 to March 14, 2017, 1.6% per annum from March 15, 2017 to September 18, 2017, 5% per annum from September 19, 2017 to November 20, 2019, and 15% per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

The defendant shall pay to the plaintiff 734,303,760 won with 2.5% per annum from January 6, 2016 to March 6, 2016, 1.8% per annum from March 7, 2016 to March 14, 2017, 1.6% per annum from March 15, 2017 to September 18, 2017, and 15% per annum from the next day to the day of full payment.

1. Basic facts

(a) Establishment of a Toluenebnb, third party, etc.;

1) On 1971, Senegn Trith Co., Ltd. (hereinafter “Stolub Trith Trith”) is a company established in Korea for the purpose of manufacturing, selling, and exporting of continuous brewing and steel products, steel products, liquor factories, and other products, and supplies lux to Spanco, etc., and the Plaintiff and its specially related persons possess 50% of the total number of shares issued.

2) In around 1995, the Nonparty: (a) received the Plaintiff’s funds; and (b) established Qinga Yai Scori Co., Ltd., Ltd., a company located in Hong Kong located in its own shareholder (hereinafter “Yama”); (c) established Qinga Ya Co., Ltd., Ltdd; hereinafter “YaS Korea”); and (d) later, Pasassa Korea supplied mineral processing materials on the lubbn 3rd.

3) On January 11, 2002, a professional manager, changed the trade name on May 16, 2007 to a total rollle International Investment Oil Limited, which was established by changing the name on May 16, 2007, to a major rollle International Investment International Investment Limited; hereinafter “ Hong Kong professional” regardless of whether it was before or after the mutual change; hereinafter “Succes Conves”, which is a specialized management company, is a Sucs Conves Littsts (hereinafter “Thosveston”), and a case Mucom Conves (hereinafter “Tves”) and a stockholder company established by converting into the Hong Kong.

B. Transfer, etc. of shares of Bosa Korea

1) The Nonparty, around 2002, transferred all of the shares owned by the thalma to the Hong Kong professionalus.

2) On September 30, 2002, Slibergbd Triend purchased 61.4% of the shares of the Republic of Korea from the Hong Kong professional supplier to US$1200,00 (hereinafter “US”). On September 30, 2004, the Hong Kong professional engineer established a company division and shares sales contract with the content of dividing and taking over the factory sector of the manufacture of steel products of the Republic of Korea from the Republic of Australia. On the other hand, the Hong Kong professional engineer: (a) divided and taking over the manufacturing sector of the steel products from the Republic of Korea; and (b) establishing the Korea professional engineer (hereinafter “Korea professional engineer”).

3) On September 30, 2007, Scenegn 31.6% of the shares of the Republic of Korea from the Hong Kong professional supplier entered into the sales contract of this case (hereinafter “instant sales contract”). Accordingly, on November 2, 2007, Scenegn Tri transferred USD 1.450,00 to the Hong Kong professional supplier, and on around November 2, 2007, Hong Kong professional supplier participated in capital increase with capital increase with the above money.

4) The Sino Comm International Limited (hereinafter “Sino Comm International”) was established in Hong Kong by taking the shareholders of Tindos and IMel as shareholders around 2008. The Hong Kong professional was dissolved and liquidated in 2009, and the stocks of the Republic of Korea, the remaining assets of which were the remaining assets, were transferred to the Sinomnas.

5) On November 2010, the Nonparty became a shareholder holding 9.98% of the issued shares by participating in the capital increase for new shares issued by the Sinogs and courses.

C. The revised declaration and payment of the instant case

1) Around 2015, the director of the Seoul Regional Tax Office under the Defendant-affiliated Regional Tax Office conducted a tax investigation on the source, etc. of the Nonparty’s fund to acquire shares in the Simnas (hereinafter “instant tax investigation”). As a result, the Plaintiff deemed that the Plaintiff actually owned the Korea promnas through Hong Kong (a nominal company) and held the shares of the Simnas, etc. on title trust with the Nonparty, thereby imposing gift tax of KRW 2,018,880,910 on the Nonparty (designated the Plaintiff as a person jointly liable for tax payment) pursuant to the provision on the constructive gift of the property held in title trust under the Inheritance Tax and Gift Tax Act. The Nonparty and the Plaintiff paid the gift

2) Meanwhile, the Plaintiff received 1,67,200,000 dollars from the tax authority around November 2, 2007 after deducting USD 1,450,00,00 which is the acquisition value of shares of Hong Kong Professional Korea from USD 386,00,00 from USD 387,287,200 (= USD 1,60,000 + USD 4,000 + 937.30/$97.30) of the former Adjustment of International Taxes Act (amended by Act No. 7956 of May 24, 2006, and revised by Act No. 9914 of November 1, 2010) by 306, 205, 306, 207, 305, 207, 207, 305, 207, 305, 207, 207, 209.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 3 and 16 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff did not have the intent of tax avoidance, and did not engage in any other unlawful act except in title trust. The Plaintiff prepared various documents under the name of the title trustee or omitted the report on the deemed dividend income of this case merely constitutes an act under title trust itself or an act ordinarily incidental to the title trust of stocks. Thus, the deemed dividend income of this case shall be subject to the exclusion period of five years under Article 26-2 (1) 3 of the former Framework Act on National Taxes (amended by Act No. 9263, Dec. 26, 2008; hereinafter the same) rather than the exclusion period of ten years under Article 26-2 (1) 1 of the former Framework Act on National Taxes (amended by Act No. 9263, Dec. 26, 2008). However, the initial date of the exclusion period of the deemed dividend income of this case is the Plaintiff’s filing deadline of global income tax in June 1, 2009; and the revised return of this case, which was filed after five years from that date, is material and clear.

B. Defendant’s assertion

The Plaintiff’s act of title trust of the shares of Hong Kong Professional is derived from the purpose of tax avoidance, and it is reasonable to view that the Plaintiff’s act of entering into a title trust service contract with a nominal company under the name of the Nonparty, the act of entering into a title trust service contract with a foreign financial account in the name of Hong Kong, the act of signing by a third party, including the Nonparty, etc. in the documents related to the said foreign financial account, and the act of dissolved Hong Kong Professionaler after transferring the shares of the Hong Kong Professional’s holding to another nominal company, and another nominal company, and the act of dissolved Hong Kong Professionaler constitutes a deceptive scheme or other active act that makes it impossible or significantly difficult to impose and collect taxes on the deemed dividend income of this case. Therefore, since the exclusion period of a revised return on global income tax on deemed dividend income of this case is ten years as stipulated in Article 26-2(1)1 of the former Framework Act on National Taxes, the revised report of this case

3. Determination

A. Whether the exclusion period of 10 years is applied to deemed dividend income of this case

1) According to Article 26-2(1) of the former Framework Act on National Taxes, the exclusion period of imposition of national taxes other than inheritance tax and gift tax, in principle, is five years from the date on which the relevant national tax may be assessed (Article 3). However, in cases where a taxpayer evades, refunds, or deducts national taxes by fraudulent or other unlawful means, 10 years from the date on which the relevant national tax may be assessed (Article 26-2(1)1 of the former Framework Act on National Taxes). The legislative intent of Article 26-2(1)1 of the former Framework Act is, in principle, the exclusion period of the right to impose national taxes is five years in principle in order to promptly determine tax relations, but it is difficult for the tax authority to find that there is any unlawful act, such as making it difficult for it difficult for it to find that the tax authority is a report of omission, and it is difficult to expect the exercise of the imposition right

Therefore, “Fraud or other unlawful act” under Article 26-2(1)1 of the former Framework Act on National Taxes refers to a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes, and it does not constitute merely a failure to file a tax return under the tax law or filing a false tax return without accompanying other acts. In addition, even if a taxpayer gains income by forging his/her name, barring special circumstances, such as where the nominal name arises from the purpose of tax evasion, and where such act is added to active acts such as the preparation of a false contract and the false payment of a false tax return to the tax authority, false registration or registration, preparation and keeping of a false account book, etc., the mere fact of the nominal name alone does not constitute “Fraud or other unlawful act” under Article 26-2(1)1 of the former Framework Act on National Taxes (see Supreme Court Decisions 2014Do3411, Feb. 18, 2016; 2011Du41819, Apr. 13, 2017; 2019Du18.

2) In light of the following circumstances revealed by taking full account of the purport of the entire pleadings, even if the Plaintiff may be deemed to have been partly the purpose of evading tax on the deemed dividend income of this case, the circumstance alleged by the Defendant alone is difficult to recognize that the Plaintiff committed an active act other than the Nonparty’s name in the instant case, and no special circumstance exists to acknowledge otherwise. Therefore, it cannot be deemed that there was “Fraud or other unlawful act” under Article 26-2(1)1 of the former Framework Act regarding the Plaintiff’s liability to pay global income tax on the deemed dividend income of this case. Thus, the global income tax on the deemed dividend income of this case shall be subject to the exclusion period of 10 years under Article 26-2(1)1 of the former Framework Act, rather than the exclusion period of 10 years under Article 26-2(1)3 of

A) In the instant case, the Plaintiff had owned the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the externally against the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right.

B) Even if the Plaintiff actually controlled and managed the foreign financial accounts in the name of Hong Kong professionalferer, or the documents related to the foreign financial accounts in the name of Hong Kong professionalferer, etc. were prepared in the name of the Nonparty, this is merely an incidental act ordinarily followed by the Nonparty, as the result of the name-oriented statement, as the Hong Kong professionalferer becomes a shareholder of Nagoya Korea and the Nonparty becomes a party to the name-title service contract. Therefore, it is difficult to deem that there was an active misconduct in addition to the name-oriented statement.

C) The Defendant also asserts to the effect that the Plaintiff’s transfer of the shares of the Korea Protocoler held by the Hong Kong Business to another nominal company constitutes an active act to conceal the name of the company to dissolve the Hong Kong Business. However, since the dissolution and transfer of shares of the Hong Kong Business is an occurrence that occurred in around 2009, it cannot be said that there was “Fraud or other unlawful act” in relation to the instant dividend income accrued in 2007 (see Supreme Court Decision 2018Du128, Dec. 13, 2018).

B. Validity of the revised return of this case and occurrence of obligation to return unjust enrichment

1) As for taxes in the form of tax return, such as global income tax, in principle, the taxpayer's tax base and tax amount are determined specifically by his/her act of filing a return, and the payment thereof is the performance of specific tax liability established by the return, and the State holds the tax amount paid based on the final tax claim. Thus, insofar as the taxpayer's act of filing a 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 filing a return constitutes abruptive invalidation due to a significant and apparent defect, the purpose, meaning, function, and legal remedies for the act of filing a return should be determined reasonably by considering the specific circumstances arising from the act of filing a return individually and reasonably (see, e.g., Supreme Court Decision 2004Da64340, Jan. 13, 206).

In taxation with the method of tax payment, a return of return was inevitably filed in order to avoid disadvantage unless there is any ground for tax payment, and where there is no other remedy with respect to the defect of a return of return, it is reasonable to deem the said return of return of return of modification as void automatically (see Supreme Court Decision 2009Da11808, Sept. 10, 2009). If the exclusion period of national tax imposition expires, the taxation authority cannot make any disposition, such as a new decision or decision of correction of increase, and a decision of correction of reduction, etc. (see Supreme Court Decision 94Da3667, Aug. 26, 1994). Thus, the revised return of which the exclusion period of national tax imposition expires after the lapse of the exclusion period of national tax imposition, constitutes a case where there is no other remedy, and thus, it shall be deemed null and void automatically due to significant and apparent defect. This conclusion is reasonable in light of the legal principle that the taxation disposition of tax imposition is null and void automatically in light of the principle that it is invalid (see Supreme Court Decision 29Du309, Jun. 29, 29, etc.

2) As seen earlier, the global income tax on deemed dividend income of this case shall be applied not to the exclusion period of ten years as stipulated in Article 26-2(1)1 of the former Framework Act on National Taxes, but to the exclusion period of five years as stipulated in Article 26-2(1)3 of the same Act. The initial date of the exclusion period of global income tax on deemed dividend income of the Plaintiff is June 1, 2009, the date following the global income tax return filing deadline of the Plaintiff in 2008. The revised return of this case was made on January 5, 2016, and its defect is significant and apparent and null and void. Accordingly, the Defendant is obliged to refund to the Plaintiff the refund amount of KRW 734,303,760 received by the revised return of this case as unjust enrichment, as well as additional dues and delay damages thereon.

C. Scope of return of unjust enrichment

1) Tax refunds constitute unjust enrichment received or held by the State without any legal cause even though the tax liability does not exist from the beginning or even after the tax liability has ceased to exist, and additional dues on refund are characterized as legal interest for such unjust enrichment. The provisions of tax law on the contents of additional dues are deemed to have the nature as a special rule on Article 748 of the Civil Act on the scope of return of unjust enrichment. As such, additional dues on refund are established according to the initial date and proportion stipulated in each provision on the additional dues, regardless of the good faith or bad faith of the State, a beneficiary, regardless of whether the beneficiary is a beneficiary. The duty to return unjust enrichment is an obligation with no fixed time limit, and the beneficiary is liable for compensation for delayed payment from the date following the date on which the request for performance was made. Therefore, after a taxpayer requested the performance of the tax refund, a taxpayer may exercise one of its rights at his own option (see, e.g., Supreme Court Decision 2009Da11808, Sept. 10, 2009).

2) According to Article 19-3 of the former Enforcement Rule of the Framework Act on National Taxes (amended by Ordinance of the Ministry of Strategy and Finance as of March 7, 2016), Article 19-3 of the former Enforcement Rule of the Framework Act on National Taxes (amended by Ordinance of the Ministry of Strategy and Finance as of March 15, 2017), Article 19-3 of the former Enforcement Rule of the Framework Act on National Taxes (amended by Ordinance of the Ministry of Strategy and Finance as of March 19, 2018), and Article 19-3 of the former Enforcement Rule of the Framework Act on National Taxes (amended by Ordinance of the Ministry of Strategy and Finance as of March 19, 2018), the interest rate on the additional payment on the refund of national taxes shall be 2.5% per annum from March 6, 2015 to March 6, 2016 until March 14, 2017; the Plaintiff shall be deemed to have received the Plaintiff’s right to claim the payment of the complaint from the Defendant by 306.

3) Therefore, the Defendant’s unjust enrichment to the Plaintiff. As to the amount of KRW 734,30,760 received according to the revised return of this case, the Defendant: (a) 2.5% per annum, the interest rate on the additional payment of national taxes from January 6, 2016 to March 6, 2016; (b) 1.8% per annum, the interest rate on the additional payment of national taxes from March 7, 2016 to March 14, 2017; and (c) 1.6% per annum, the interest rate on the additional payment of national taxes from March 15, 2017 to September 18, 2017, which is the delivery date of a duplicate of the complaint of this case; (d) the additional payment of national taxes calculated at the rate of 1.6% per annum, which is the interest rate for the additional payment of national taxes from the next day to the date of the first instance judgment, to November 20, 2019.

4. Conclusion

The plaintiff's claim is reasonable within the scope of the above recognition, and the remainder of the claim shall be accepted, and it shall be dismissed as there is no ground. Since the part of the judgment of the court of first instance different from this conclusion is unfair, the plaintiff's appeal shall be partially accepted and the defendant shall be revoked and the above-mentioned amount shall be ordered to pay. The remaining part of the judgment of the court of

Judges Lee Jong-soo (Presiding Judge)