The lawsuit of this case is unlawful because there is no benefit of confirmation.

As in the instant case, only seeking confirmation that a refund claim was held at a specific time in the past cannot be deemed as a final resolution of the dispute, and thus, there is no interest in confirmation.

Article 54 of the Framework Act on National Taxes

2015. Confirmation of refund, etc., 570358

O Industry Co., Ltd.

Korea

2016.02.26

2016.03.18

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

Of 0,000,000,000 won paid by the Defendant for the public sale of 0,000,000,000 won and 12 parcels owned by the Plaintiff, the remainder of 00,000,000 won for the Plaintiff’s national tax in arrears at the time of ○○○ City, ○○○○○○○, 111,00,000,000 won is that the amount to be refunded to the Plaintiff as of December 3, 1997.

1. Basic facts

A. The Plaintiff is a company established on July 1, 1981 for the purpose of coal mine operation and coal-free coal processing business, etc.

The plaintiff collected coal from AA mining center located in 47 in ○○-si, ○○-si, ○○○-si, and operated a business to manufacture and sell smoke at the 45 B B B B B B located in △-dong, △-dong, △△-dong, and reported the closure of the business around January 1, 1993, respectively.

B. The head of ○○○ Tax Office (the Enforcement Rule of the Organization of the National Tax Service and its affiliated agencies succeeded to his authority on July 1, 200 by Ordinance of the Ministry of Finance and Economy) issued a disposition imposing KRW 00,000,000 in total of the corporate tax and special surtax for the business year 1994 (hereinafter “instant disposition”) on the Plaintiff around January 16, 1996; the disposition imposing KRW 00,000,000 in total of the corporate tax and special surtax for the business year 1992; the disposition imposing KRW 00,000,000 in total of the corporate tax and special surtax for the business year 193; and the disposition imposing KRW 00,000 in total of the corporate tax and special surtax for the business year 1994 on the same day; and the disposition imposing KRW 0,00,000 in addition to the corporate tax and special surtax for the business year 194 (hereinafter “each of the instant dispositions”).

C. A public auction disposition on the real estate owned by the Plaintiff was taken in around 1997 for the collection of the delinquent tax amount among the tax amounts imposed by each disposition of the instant case, and the remainder, excluding the disposition fee for arrears, was appropriated for the amount of the Plaintiff’s delinquent tax.

2. The plaintiff's assertion

Of the final tax amount by the instant disposition, KRW 00,000,000 for principal tax was fully paid by the Plaintiff around June 26, 1996, which was prior to the commencement of the said public sale procedure. Moreover, since the final tax amount by each of the instant dispositions has already been included in the additional charges, it is also erroneously calculated the additional charges, as stated in the written request for public sale by proxy. Considering all circumstances, if corporate tax and additional charges are reasonably calculated based on the reasonable calculation of corporate tax and additional charges, the amount paid to the Defendant out of the proceeds from the sale of real estate owned by the Plaintiff disposed of by the public sale by the Plaintiff would be appropriated for the delinquent tax amount of KRW 00,000,000,000, as well as the amount that should be refunded to the Plaintiff as of December 3, 1997.

3. Judgment on the defendant's main defense of safety

The defendant asserts that the lawsuit of this case is unlawful because there is no benefit of confirmation.

However, it is recognized that it is the most effective and appropriate means to judge as a confirmation judgment when the legal status of the plaintiff is unstable and dangerous.

Therefore, despite the possibility of filing a lawsuit claiming performance, the filing of a lawsuit for confirmation is not a final method of resolving a dispute, and there is no benefit in confirmation (see, e.g., Supreme Court Decision 2005Da60239, Mar. 9, 2006).

In light of the above legal principles, even according to the Plaintiff’s assertion itself, the Plaintiff’s claim for the performance of the claim against the Defendant to recover the amount equivalent to the corporate tax erroneously paid or overpaid is deemed the most effective and appropriate means of dispute resolution, and only seeking confirmation to the effect that the Plaintiff owned the refund claim at a specific time in the past cannot be deemed a final method of dispute resolution. Therefore, the instant lawsuit has no interest in confirmation.

Even if there is a benefit in confirming the instant lawsuit, it is determined that the Plaintiff did not have any claim for refund or extinguished extinctive prescription, taking into account the following circumstances, comprehensively taking into account the following circumstances acknowledged to have neglected the purport of the entire pleadings.

① On June 26, 1996, the Plaintiff asserted that corporate tax under the instant disposition was paid, and submitted as a major evidence related thereto, the evidence Nos. 7, 8, 16, 17, and 23 (including the provisional number) was submitted.

However, each of the above evidence is merely stated the payment deadline of the corporate tax of this case on January 17, 1996, and therefore, it cannot be admitted as evidence to acknowledge the fact that the plaintiff paid the above corporate tax on June 26, 1996. The circumstance that the seizure of part of the real estate owned by the plaintiff was cancelled at that time is insufficient to recognize the above fact, and there is no other evidence to acknowledge it.

② Article 54(1) of the Framework Act on National Taxes and Article 96(2) and (1) of the former Budget and Accounts Act (repealed by Act No. 8050, Oct. 4, 2006) provide that the period of extinctive prescription of a taxpayer’s right to refund of national taxes or the right to the State for the payment of money shall be five years. However, the Plaintiff filed the instant lawsuit on November 10, 2015, where five years have elapsed since the Plaintiff asserted that he/she had a claim for refund against the Defendant as of December 12, 1997, while claiming that he/she had a claim for refund against the Defendant as of November 10, 2015. Therefore,

As a result, the plaintiff's assertion does not seem to have any mother or reason.

4. Conclusion

Therefore, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition.