Incheon District Court-2016-Gu Partnership-52594 (2017.09.07)

Whether the claim for this case is legitimate

The defendant's refusal notice of this case is "the notification of rejection of the plaintiff's refusal of refund" and it cannot be viewed as a specific and direct disposition that affect the plaintiff's existence or scope of the right to claim refund of value-added tax of this case, and it does not constitute a disposition

Seoul High Court 2016Guhap52594 Disposition rejecting the rectification of value-added tax

MaO

O Head of the tax office other than 1

8.02.06

2018.027

1. The plaintiff's appeal against the defendant OO director is dismissed.

2. The plaintiff's action against the Republic of Korea added at the trial shall be dismissed.

3. The costs of the lawsuit after the appeal shall be borne by the plaintiff.

The judgment of the first instance court is revoked, and the disposition rejecting the claim for correction of value-added tax for the second period of July 10, 2015 rendered by Defendant OO head of the tax office against the Plaintiff on July 10, 2015 is revoked. The Defendant Republic of Korea shall pay to the Plaintiff 323,494,525 won and the amount equivalent to 15% per annum from the day following the day when the copy of the application for correction of the claim and the cause of the claim in this case is served to the Plaintiff (the Plaintiff added to the refund of national tax, which was the purpose of the claim for correction of value-added tax for the second period of value-added tax for the second period of 2014,

1. Basic facts

A. In 2014, the Plaintiff issued 79 copies of the tax invoice stating that “the Plaintiff supplied copper scrap, etc. equivalent to KRW 3,890,913,410 to 11 companies, such as OO Co., Ltd. (hereinafter “instant companies”)” (hereinafter “the tax invoice of this case”), and filed a return on the second value-added tax for 2014 with the Defendant on KRW 395,172,631 calculated on the basis of the instant tax invoice, etc., as the output tax amount.

B. Meanwhile, on October 27, 2014 and January 26, 2015, the instant company paid the output tax amount under the instant tax invoice according to the special case for payment of value-added tax by a purchaser of scrap scrap under Article 106-9(3) of the former Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015).

C. As a result, from March 16, 2015 to June 4, 2015, the OO regional tax office conducted a tax offense investigation with the Plaintiff, and notified the Defendant of the relevant taxation data by deeming that the instant tax invoice constitutes a processed tax invoice that is not a real transaction. Accordingly, the Defendant: (a) obtained a correction of value-added tax assessment for the second period of 2014 from the Plaintiff who deducted the sales of the instant tax invoice from KRW 3,951,726,310 to KRW 60,812,90; and (b) obtained a reduction of the output tax amount from KRW 395,172,631 to KRW 6,081,290 (excluding penalty tax in bad faith, KRW 77,849,544).

D. On July 3, 2015, the Plaintiff issued a request for correction (hereinafter “instant request for correction”) to the effect that “the sales on the instant tax invoice shall be deemed as the processed sales, and that the tax base and the amount of tax already paid shall be refunded at KRW 389,091,341 (hereinafter “the instant value-added tax”). However, on July 10, 2015, the Defendant issued a notice of refusal of the said request for correction on the ground that “the value-added tax declared and paid by the Plaintiff, who is the parties to the instant tax invoice, cannot be refundable” on the grounds that “the Plaintiff, as the parties to the instant tax invoice, cannot be refunded with the value-added tax returned and paid by the processing tax invoice” (hereinafter “instant notice of refusal”).

E. On July 21, 2015, the Plaintiff appealed to the Tax Tribunal for the revocation of the instant rejection notice. However, the Tax Tribunal dismissed the said claim on April 12, 2016.

F. The Plaintiff initially filed a lawsuit against Defendant OO chief of the tax office seeking the revocation of the instant rejection notice, but at the time of the trial, filed a lawsuit against Defendant Republic of Korea seeking the refund of the amount of tax reduced due to the instant rejection notice, and joined this lawsuit, and filed a separate lawsuit against the Defendant Republic of Korea seeking the return of unjust enrichment equivalent to the amount of tax reduced due to the instant rejection notice.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, 8, 10, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Determination on the claim to revoke the rejection notice of this case

A. Summary of the defendant's assertion

The instant claim for correction is nothing more than seeking refund of the value-added tax already reduced through the instant decision of correction. As such, the Defendant’s notice of rejection is not a rejection disposition against a claim for correction of value-added tax, but a simple notification of rejection decision. However, the Plaintiff is disputing the instant notification of rejection that is not recognized as a disposition. Thus, the instant lawsuit is unlawful due to its lack of qualification as an appeal litigation.

B. Determination

Articles 51(1) and 52 of the Framework Act on National Taxes only provide for the procedures for refund of tax refund and additional dues for internal administration of national tax refund for which the claim for refund has become final and conclusive, and it does not become final and conclusive only by the determination of national tax refund (including additional dues). Thus, the determination of rejection of a claim for refund of national tax refund or a request for refund, etc. is not a disposition that specifically and directly affects the existence or scope of the tax payer’s claim for refund, and thus cannot be deemed a disposition subject to appeal litigation (see, e.g., Supreme Court Decision 2001Du8780, Nov. 8, 2002). According to the factual relations and the purport of the whole arguments as seen in paragraph (1) above, according to the following facts and the purport of the argument, ① the Defendant issued a decision of correction of the instant case with the purport that the amount of value-added tax imposed by the Plaintiff subtracting the sales of the tax invoice in this case from the base of second value-added tax in 2014.

Examining the above facts in light of the legal principles as seen earlier, the defendant's rejection notice of this case is not a rejection disposition against the claim for the refund of value-added tax of this case, but merely merely a notification of the plaintiff's refusal to refund the value-added tax of this case that has already been reduced by the correction order of this case. Thus, it cannot be deemed that the plaintiff's rejection notice of this case does not constitute an "disposition that is the object of appeal litigation" (On the other hand, the plaintiff's correction of the amount of refund (payment) and the amount of reduction and deduction from the contents of the correction decision of this case is erroneous. However, according to the purport of Gap evidence No. 3 and arguments, the defendant already corrected the amount of the input tax amount of 389,091,341 won which the plaintiff asserted for the refund. However, the plaintiff's rejection notice of this case constitutes a false return on sales by the processing tax invoice and thus does not have any further dispute as to the imposition disposition of value-added tax of this case (the plaintiff's assertion that the amount of the plaintiff's correction was erroneous, but the plaintiff's objection is legitimate).

Therefore, the part concerning the claim for cancellation of the refusal notification among the lawsuit of this case is unlawful.

3. Determination on claim for refund of value-added tax

A. The plaintiff filed a party lawsuit against the defendant Republic of Korea seeking refund of the amount of reduced tax due to the decision of correction of the amount of reduced tax in this case and joined it. We examine the legality of the lawsuit in this part ex officio.

B. The consolidation of related claims under Articles 10 and 44(2) of the Administrative Litigation Act requires that the original revocation lawsuit shall be lawful. Thus, in a case where a lawsuit seeking revocation is dismissed due to its illegality, the joined claims shall also be dismissed as they fail to satisfy the requirements for the lawsuit (see Supreme Court Decision 95Nu13708, Mar. 14, 1997). Therefore, inasmuch as the lawsuit seeking revocation of the refusal notice of this case should be dismissed as being illegal, the part concerning the claim for payment of the above refund, which is the combined claim, shall not be dismissed as being inappropriate due to its failure to meet the requirements for the lawsuit.

C. Meanwhile, the main text of Article 51(1) of the Framework Act on National Taxes provides that “if a taxpayer has erroneously paid or overpaid the amount paid as a national tax, additional dues, or disposition fee for arrears, or there is a tax refund to be refunded under the tax-related Acts, the head of a tax office shall immediately determine such erroneous amount or overpaid amount paid in excess, or the tax amount to be refunded as a refund of national tax.” Article 51(1) of the Framework Act on National Taxes declares the legal doctrine that an immediate return of the amount is reasonable in terms of justice and fairness by the State without waiting for a taxpayer’s application for refund. As such, the amount of erroneous payment, the existence and scope of which has already been determined, may be claimed by the taxpayer as a civil lawsuit seeking a return of unjust enrichment (see, e.g., Supreme Court Decisions 2008Da2918, Apr. 23, 2009; 2013Da212639, Aug. 27, 2015).

In light of the legal principles as seen earlier, it is reasonable for the Plaintiff to seek a refund of the amount of erroneous payment, the existence and scope of which have been determined by the decision of correction of the reduction of this case against the Defendant Kimpo-General, not by a civil lawsuit seeking a return of unjust enrichment. In this regard, this part of the lawsuit is unlawful (the Plaintiff’s lawsuit claiming a refund of value-added tax should be instituted as a party suit in accordance with the purport of the Supreme Court en banc Decision 2011Da95564 Decided March 21, 2013). However, the above judgment is different from this part of the case and cannot be invoked in this part of the case).

D. Ultimately, the part of the claim for the refund of value-added tax in the instant lawsuit is deemed to be either ambiguous or unlawful.

4. Conclusion

Therefore, all of the lawsuits of this case shall be dismissed. Since the part concerning the plaintiff's lawsuit against the defendant Kimpo-soo in the judgment of the court of first instance concerning the plaintiff's lawsuit against the defendant Kimpo-si is just in conclusion, this part of the plaintiff's appeal is dismissed as it is without merit, and it is also unlawful in the lawsuit against the defendant's Republic of Korea added

1) Although the application form for the modification of the purport and cause of the claim, and the application form for the modification of the lawsuit are written by the director of the District Tax Office, it is obvious that it is a clerical error of the Kimpo Tax Office.

2) Even on December 23, 2014, there was an amendment to Article 106-9(3) of the Restriction of Special Taxation Act by Act No. 12853, but merely changed the 'old scrap' to 's 's 's 's 's 's 's 's 's 's 's 's 's '