Since the imposition of additional tax is null and void annually, it is necessary to pay the refund claim to the plaintiff.

The imposition of penalty tax not issued for disguised processing of the tax invoice is null and void as a matter of course. Therefore, part of the amount of the tax refund is paid to the transferee of the claim for national tax refund

201 Gohap45243 Amount of transfer

Republic of KoreaAAA

Korea

January 27, 2012

February 10, 2012

1. The defendant shall pay to the plaintiff 70,965,561 won with 5% interest per annum from May 13, 201 to February 10, 201, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 925,900,000 won with 20% interest per annum from the day following the day of service of a copy of the complaint of this case 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 whole arguments in the statement in Gap evidence Nos. 2-1 through 6, Eul evidence Nos. 1-2, Eul evidence No. 8, Eul evidence No. 9, Eul evidence No. 12, Eul evidence No. 14 through 17, Eul evidence No. 20-1, and Eul evidence No. 20-2.

A. BBB Co., Ltd. (hereinafter “BBB”) concluded a contract on July 21, 2010 between the Plaintiff and the Plaintiff to transfer to the Plaintiff any claim relating to the national tax refund for which BBB is to be refunded according to the said final return, in advance of the final return of the first value-added tax in 2010.

B. On July 21, 2010, BB made the final return on the sales tax amount of KRW 0,00, input tax amount of KRW 925,90,000, and KRW 925,90,000,00 to the head of the competent tax office affiliated with the Defendant as the first value-added tax in 2010. On the same day, BB notified the Defendant of the assignment of claims with a fixed date, and submitted to the head of the competent tax office a written request for the transfer of national tax refund of KRW 925,90,000 for the said tax refund amount

C. Around February 8, 2011, the head of the Suwon Tax Office did not pay the national tax refund to the Plaintiff. On or around February 17, 2011, the Plaintiff sent to the head of the Suwon Tax Office a written notice of the results of the determination of the national tax refund to the Plaintiff, and on February 17, 2011, the head of the Suwon Tax Office notified the Plaintiff of the results of the tax refund determination. As a result of the tax investigation conducted on the 1st value-added tax of BBB in 2010, the notice amount would not have been subject to tax refund (the Plaintiff)

D. On March 3, 2011, the head of the Suwon District Tax Office: (a) did not recognize the amount of KRW 587,387,897 as the input tax amount on the ground that BBB’s 2010 confirmed the purchase tax invoice (value: -5,873,878,963) different from the fact; (b) did not recognize the amount of KRW 587,387,897 as the input tax amount; and (c) revised the amount of KRW 34,512,103 [ [the above KRW 931,90,00 - the above KRW 587,387,897) - KRW 00] [the above KRW 391,024,024,121 at BB; and (d) notified the amount of additional tax on the false and fictitious tax invoice - KRW 391,75,147,575,294,57,297.14].

E. However, during the proceeding of the instant lawsuit, the director of the Daegu Regional Tax Office pointed out to the effect that BBB did not issue the instant tax invoice, rather than the disguised non-issuance of the tax invoice, and that the amount of the excess non-issuance of the tax invoice should also be imposed as a general tax rather than an unjust non-issuance of the tax invoice. The head of the Suwon District Tax Office, around January 5, 2012, reduced KRW 117,477,579, which was 117,477,579, which was not a disguised non-issuance of the tax invoice, to KRW 234,95,158,158, which was 58,000, KRW 58,000, KRW 58,000, KRW 160, KRW 20,738,789, KRW 201, KRW 201, KRW 230, KRW 130,015, KRW 214,2014.

G. Meanwhile, BBB did not file an appeal against the Defendant regarding the instant corrective disposition or the instant additional tax collection disposition not later than the date of closing argument.

2. The parties' assertion

A. The plaintiff's assertion

(1) The plaintiff's primary assertion

(A) The Defendant’s disposition of revision of the Section 1 of this case was based on the premise that “CCB’s 200-0 OBC was comprehensively transferred the rights and obligations of the Plaintiff’s 201 and/or 7.00 of the instant tax invoice for the instant construction contract (hereinafter “CCB”) to the Plaintiff on April 23, 2010, and that there was no other tax invoice for the instant construction contract issued by the Plaintiff on the 36.0-6.0 of the instant tax invoice for the instant construction contract (hereinafter “this case’s construction contract”), and that there was no other tax invoice for the instant construction contract issued by the Plaintiff on August 4, 200, and that there was no other tax invoice for the instant construction contract issued by the Plaintiff on the 7.0-6.06.36.666.36.0 of the supply price of the CCC 200.

(C) Even if the first correction disposition of this case is not null and void as a matter of course, it was done after the transfer of the national tax refund claim to the Plaintiff, and it was done without any notification to the Plaintiff, who is an important interested party as the transferee of the national tax refund claim. Thus, the Defendant cannot oppose the Plaintiff by the first correction disposition of this case.

(D) Therefore, the Defendant is liable to pay the refund tax amounting to KRW 925,900,000 and the delay damages therefor, which was reported by BBB as the first value-added tax in 2010, to the Plaintiff who acquired the national tax refund claim from BBB.

(2) The plaintiff's conjunctive assertion

(A) First Preliminary Claim

In the instant case, even if the corrective disposition is not null and void as a matter of course, it is not the person liable to issue the instant tax invoice, but not the person liable to issue the instant tax invoice, and the imposition of additional tax on BBBB, for which the Defendant did not receive the refund tax amount from the Defendant, is null and void as a matter of course. Thus, the Defendant is liable to pay 34,512,103 won of the refundable tax amount revised as the corrective disposition due to the first corrective disposition, and damages for delay.

(B) 2 Preliminary Claim

Even if the first revised disposition and the second revised disposition are effective, the national tax refund claims against the above KRW 344,512,103 have already been attributed to the Plaintiff upon the request of BBB for transfer. Therefore, it is invalid to appropriate the above KRW 344,512,103 on the basis of the imposition of additional tax after the lapse of the month from the date of the request of BBB for transfer.

(C) The third preliminary assertion

Although the imposition of the first revised disposition and additional tax is effective, the first revised disposition and the imposition of the second revised disposition in BB in 2010 shall be deemed to have been attributed to the Plaintiff, the transferee of the national tax refund, upon the request of BBB, and thus, the appropriation of the second revised disposition and additional tax to the national tax delinquent by BBB in arrears is no longer effective since the tax claim was collected against the property not owned by BBB.

B. The defendant's argument

(1) The head of the Suwon Tax Office determined that BB had comprehensively taken over the instant resort-based business fromCCRs and made a disposition of correction No. 1 of this case on the grounds that BB had no significant and obvious defect in the content of the assets acquisition agreement on April 23, 2010 between BB andCC Pos, and thatCC Pos and BBB did not report value-added tax on the said assets acquisition agreement.

(2) Although there was a defect in the imposition of additional tax in the instant disposition, it does not constitute a ground for invalidation as a matter of course. Moreover, the head of the Suwon Tax Office corrected the above defect due to the second correction disposition of the instant case. As such, the head of the Suwon Tax Office determined KRW 191,564,510 for the sum of additional tax refund 191,564,510 for the remainder after deducting the amount of additional tax 156,068,962 as corrected by the second correction disposition of the instant case from the refund tax amount of KRW 344,512,10 for the refund tax amount corrected by the first correction disposition of the instant case, and promptly appropriating it for other national taxes in arrears of BBB as a result of a refund under Article 42(2) of the Enforcement Decree of the Framework

3. Determination

A. As to the plaintiff's primary argument

(1) Whether the corrective disposition No. 1 of this case is void as a matter of course

(A) Generally, a taxation disposition made on a person who does not have any factual relation, such as the legal relation, income, or act, which is subject to taxation, shall be deemed to have a significant and apparent defect. However, in a case where there are objective circumstances that could mislead him to believe that the legal relation or factual relation which is not subject to taxation is subject to taxation, if it can only be identified as a matter of a accurate investigation into the factual relation, it cannot be deemed that the defect is obvious even if it is serious, and thus, it cannot be deemed that the illegal taxation disposition that misleads the fact subject to taxation is void as a matter of course (see Supreme Court Decision 2008Da31768, Mar. 26, 2009).

(B) Comprehensively taking into account the following facts: (i)CCB-1 No. 1, (ii) No. 1, 3, and (iii) No. 19 were entered into the instant construction contract with DD on August 4, 2009; (iv) No. 7,575,00,000 (including value added tax) were paid to DD; (iii) No. 6,86,363,636 of supply price of DB-1; and (iv) No. 1) No. 246 of DB-1 and No. 19 were entered into the instant contract with DB-2; and (v) No. 2) No. 1 and No. 2446 of DB-6; (v) No. 2) No. 1 and No. 246-3, 2010.

(C) In light of the following facts: (a) the content of the instant asset acquisition agreement revealed in the above recognition; (b) the operator ofCC and BB is the same person; and (c) the CC and BBB did not report value-added tax related to the instant asset acquisition agreement; (c) the Defendant had objective circumstances to make it possible for BBBBBB to comprehensively succeed to all the rights and obligations of the BBBBB on the instant network business through the instant asset acquisition agreement; and (c) in such a case, the instant tax invoice issued by CBBB from DD was a tax invoice to be issued by CBBB; and (b) whether CCC has to have reported the purchase amount and the input tax amount by reflecting the purchase amount under the instant tax invoice at the time of the first final return of 2010 based on the principle of substantial taxation; and (c) there is no significant and obvious evidence to deem otherwise.

(D) Therefore, the corrective disposition of this case No. 1 cannot be deemed as a rightful invalidation.

(2) As to whether the Defendant could oppose the Plaintiff by the correction disposition No. 1 of this case

(A) The provisions of Article 51(1) of the Framework Act on National Taxes, Article 24(1) of the Value-Added Tax Act, and Article 72 of the Enforcement Decree of the Value-Added Tax Act provide that when the government has erroneously paid tax amount or refunded tax amount, the existence and scope of which have already been determined as unjust enrichment, it would be reasonable to immediately return such amount without filing an application for refund of unjust enrichment by a taxpayer. Thus, erroneous payment or refundable tax amount, the existence and scope of which have already been determined, may be claimed by a taxpayer as a civil lawsuit seeking return of unjust enrichment. However, where the tax authority rendered a decision of correction that the tax amount was omitted in the initial tax base, tax amount, or refundable tax amount return, etc., and the tax authority has issued a decision of correction that reduces the amount of refundable tax or increases the amount of refundable tax pursuant to Article 21(1) of the Value-Added Tax Act, the tax amount of the tax arising from the initial return can no longer be maintained. Thus, a taxpayer should file a lawsuit seeking revocation of the tax amount of refundable tax amount originally reported (see Supreme Court Decision 20020Du.

(B) In light of the above legal principles, the Plaintiff, the transferee of the national tax refund claim, may not seek payment of the refund tax pursuant to the final return as of July 21, 2010, on July 21, 2010 by the Health Service, BB, lost its final capacity due to the instant first correction disposition, and the existence and scope of the refund tax amount subject to the national tax refund claim changed according to the first correction disposition. As seen earlier, as long as the first correction disposition in this case does not automatically become null and void, and the existence and scope of the refund tax amount subject to the national tax refund claim are not revoked through an appeal litigation, the Plaintiff, the transferee of the national tax refund claim, may not claim payment of the refund tax amount pursuant to the first correction disposition as of July 21, 2010, and may not claim payment (the Plaintiff also claims that the Defendant cannot oppose the Plaintiff as the first correction disposition without any notice to the Plaintiff, the interested party to the first correction disposition as of July 21, 2010).

(3) Sub-decisions

Therefore, the plaintiff's primary assertion, which is premised on the invalidity of the first correction disposition of this case as a matter of course or that the defendant cannot oppose the plaintiff due to the first correction disposition of this case, is without merit without further review as to the remaining points.

B. As to the plaintiff's each conjunctive assertion

(1) Whether the imposition of each additional tax against BB is void automatically

(A) Imposition of penalty tax not issued for disguised tax invoice processing

1) Relevant provisions on additional taxes to be issued for false processing of tax invoices are as follows:

2) On the other hand, as seen earlier, the head of Suwon Tax Office imposed KRW 117,477,579 on BB an additional tax not issued for disguised processing of the tax invoice on the ground that BBB was not CC-B but BB, on the ground that BB was comprehensively granted the rights and obligations regarding the instant method-based business under the instant contract on the acquisition of the assets. However, the aforementioned facts do not fall under any subparagraph of Article 22(3) of the former Value-Added Tax Act, which provides for the taxation requirements for the amount of additional tax to be issued for disguised non-issuance of the tax invoice. As such, the Defendant did not appear to have been aware that BB had satisfied the taxation requirements for the amount of additional tax to be issued for disguised processing by calculating the tax on BB, and thus, the disposition imposing additional tax on BB-B due to a significant and apparent defect in the issuance of the tax invoice.

(B) Imposition of additional tax on excess return

1) If the tax authority intends to impose a tax, it shall determine the tax base amount and calculate the tax base amount based on the accurate basis obtained by the method of investigation prescribed by the pertinent tax laws and regulations, and if the tax base amount and the tax amount are to be imposed in a remote manner without any grounds, due to a grave and apparent defect, it would be deemed that the defect would be null and void as a matter of course. However, if such investigation procedure contains an error of law, such as simple mistake of the method of taxation, erroneous selection of the method of investigation, and error in calculating the amount of tax, it would only be the ground for revocation (see Supreme Court Decision 96Nu12634 delivered on June 26, 1998).

2) As to the instant case, on March 3, 201, the head of the Suwon Tax Office imposed additional tax on the fact that BBB filed an excessive refund return of KRW 587,387,897 without including the input tax amount related to the instant tax invoice - the excess refund return of KRW 587,387,897, by deeming that the excess refund return was filed in an unjust manner, and imposed KRW 117,477,579, which is equivalent to 40/100 of the above 587,387,897, which was indicated to correct it at the time of the Daegu Director of the Regional Tax Office’s audit, on March 3, 201, the head of the Suwon Tax Office imposed the additional tax on the instant tax invoice - 58,78,789,100, which was 100,0000 won - 10,0000 won - 3,000,000 won.

(C) Imposition of penalty tax due to incomplete payment and imposition of penalty tax due to incomplete payment of aggregate tax invoices by seller

The Plaintiff asserts that the Defendant’s imposition of the penalty tax in bad faith on March 3, 201 and the imposition of the penalty tax in bad faith on January 5, 2012 by individual suppliers on the imposition of the aggregate tax invoices by individual suppliers on January 5, 201, are null and void as a matter of course. However, there is no evidence to

(2) As to the time when the national tax refund of BB is determined

Article 51(1) of the Framework Act on National Taxes provides that "if a taxpayer has erroneously paid or overpaid the amount of national tax paid as additional dues or disposition fees for arrears, or there is an amount of tax to be refunded under the tax-related Acts (if any, referring to the amount remaining after deducting the amount of tax to be refunded under the tax-related Acts), the amount of such erroneous payment, excess amount or refundable amount shall be immediately determined as a refund of national tax." "In this context, the amount of erroneous payment (in the case of a return of tax), or imposition (in the case of a return of tax), which would be the basis of the payment or collection (in the case of a return of tax), is nonexistent or void, the amount of tax paid in excess (see, e.g., Supreme Court Decision 200Du14068, Jun. 7, 2006)" means the amount of tax refund which has been determined as unlawful or invalid at the time of revocation or correction of the tax-related Acts, and thus, the amount of tax refund or refund becomes void from the beginning.

(C) On March 3, 2011, the tax amount refunded by BB to the instant case was revised to 344,512,103 won through the first correction order, but the head of the Suwon District Tax Office notified that the head of the competent district tax office would impose and collect the penalty tax of this case on March 10, 201, 200, 36,512,01, and 46,512,01,01, and 30,01,000 won should be paid more than 46,512,018 won. In the instant imposition disposition of the additional tax of this case, the imposition disposition of the additional tax of this case was null and void as a matter of course, and thus, the imposition of the additional tax which was issued by BBB should be deemed to be 70,965,561 won [34,512,103 won prior to the correction of the refund return of this case - (234,95,150 won) and 315,01.31.

(D) Furthermore, on January 5, 2012, the head of the Suwon Tax Office revised the additional tax for excess refund return at KRW 234,95,158, to KRW 58,738,789, from KRW 238,788,789, and newly imposed KRW 58,789, which was 117,47,580, which was in excess of the additional tax among the tax refund of BBB, (i.e., the additional tax for excess refund return at KRW 234,95,158, - the additional tax for excess refund return at KRW 58,738,789, - the aggregate tax return at each purchaser 58,738,789,789) after the second revision of the instant case, as the national tax refund.

(3) As to the validity of the appropriation of the national tax refund on January 5, 2012

(A) Comprehensive review of the provisions of Articles 51 and 53 of the Framework Act on National Taxes, and Article 42 of the Enforcement Decree of the Framework Act on National Taxes reveals that the taxpayer’s transfer of national tax refund to another person, his/her name and address, and name, and details of the right to transfer, are notified to the head of a tax office in writing, and if the transferor is found to have any national tax in arrears after investigating whether the transferor is other delinquent national taxes, etc., the head of the tax office shall first appropriate the national tax in arrears and pay the transferee the remaining amount if there is any delinquent national tax. If the transferee fails to appropriate the national tax refund without delay even after the taxpayer receives lawful request for transfer due to the violation of this, the transferee’s claim for the national tax refund shall be reverted to the assignee. If the latter is appropriated for the national tax in arrears of the transferor, the appropriation shall become effective in the future, and if so, it shall not become effective in the determination of whether the tax refund was appropriated before 2002Da31834, Sept. 26, 2003).

(B) On July 21, 2010, BB returned to the Plaintiff. On the same day, BB transferred the refund of national tax under the first-class value-added tax return for the year 2010, to the head of the competent tax office on the same day. A request for transfer of the national tax refund of KRW 925,90,000 was filed on the same day. BBB’s refund of KRW 70,965,561 out of the refund of this case on March 3, 2011, which was subject to the first revised disposition and the imposition of the additional tax, was finalized at that time due to the invalidity of the imposition of the disguised additional tax, and the refund of the national tax refund of KRW 70,965,561 out of the total amount of the refund of KRW 117,477,580, the amount of the refund of national tax to the Plaintiff at the time of the 207BBB’s expiration of the period of imposition of the additional tax.

(4) The theory of lawsuit

Therefore, the Defendant is obligated to pay to the Plaintiff who acquired the BB’s national tax refund claim KRW 70,965,561 as well as damages for delay calculated at each annual rate of 20% per annum under the Civil Act from May 13, 2011 to February 10, 2012, which is the date of the decision of this case where it is deemed reasonable for the Defendant to dispute about the existence or scope of the obligation to pay to the Plaintiff, as requested by the Plaintiff, from May 13, 2011, the delivery date of a copy of the complaint of this case to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.