[1] Whether a lawsuit can be filed as a civil lawsuit seeking a return of unjust enrichment amount or tax amount refundable, the existence and scope of which are determined (affirmative)

[2] Where the tax authority decides to revise a reduction or increase in filing a return of value-added tax refund, the method of dissatisfactioning such tax return (negative)

[1] The provisions of Article 51(1) of the Framework Act on National Taxes, Article 24 of the Value-Added Tax Act, and Article 72 of the Enforcement Decree of the same Act, concerning the refund of value-added tax, are declared as follows: in a case where there is erroneous payment or tax refund, the existence and scope of which are already determined as unjust enrichment by the government, the immediate return of such erroneous payment or refund without filing an application for refund of the taxpayer is reasonable as justice and fairness. Thus, the amount of erroneous payment or refund whose existence and scope are already determined, may be claimed by the taxpayer as a civil lawsuit claiming

[2] In a case where the tax authority rendered a decision of correction that reduces the amount of tax payable or increases the amount of tax payable pursuant to Article 21(1) of the Value-Added Tax Act on the grounds that a taxpayer had an omission or error in the tax base or amount of tax already filed, or in the amount of tax payable or the amount of tax refundable, the confirmation of tax liability arising from the initial return cannot be maintained. Therefore, if the taxpayer is dissatisfied with the decision of correction of the tax authority and is to be paid the amount of tax initially filed, the method of filing a lawsuit seeking revocation of the decision

[1] Article 51(1) of the Framework Act on National Taxes, Article 24 of the Value-Added Tax Act, Article 72 of the Enforcement Decree of the Value-Added Tax Act, Article 741 of the Civil Act / [2] Article 55(1) of the Framework Act on National Taxes, Article 21(1) of the Value-

[1] [2] Supreme Court Decision 94Da34005 delivered on April 12, 1996 (Gong1996Sang, 1489) / [1] Supreme Court Decision 87Nu479 delivered on November 8, 198 (Gong198, 1540) Supreme Court en banc Decision 88Nu6436 delivered on June 15, 1989 (Gong1989, 1096), Supreme Court Decision 91Da13342 delivered on July 9, 191 (Gong1991, 2131) / [2] Supreme Court Decision 91Nu1313 delivered on April 28, 192 (Gong192, 1766), Supreme Court Decision 97Nu194539 delivered on May 13, 1994 (Gong19475 delivered on May 194, 197)

Han-P Tourism Co., Ltd. (Law Firm Hunting Ba, Attorneys Lee Dong-soo et al., Counsel for the defendant

Korea

Seoul High Court Decision 94Na27177 delivered on December 14, 1994

The judgment of the court of first instance is reversed, and the judgment of the court of first instance is revoked. The litigation costs are assessed against the plaintiff.

Judgment ex officio is made.

1. Article 51(1) of the Framework Act on National Taxes concerning the refund of national taxes, Article 24 of the Value-Added Tax Act, and Article 72 of the Enforcement Decree of the same Act concerning the refund of value-added taxes are declared as follows: in a case where there is erroneous payment or refundable tax, the existence and scope of which are already determined as unjust enrichment by the government, the immediate return of such erroneous payment or refundable tax without filing an application for refund by a taxpayer is reasonable as justice and fairness. Thus, the erroneous payment or refundable tax whose existence and scope are already determined as such may be claimed by a taxpayer for a civil lawsuit claiming a return of unjust enrichment (Supreme Court Decisions 87Nu479 delivered on November 8, 198, 88Nu6436 delivered on June 15, 198, 91Da1342 delivered on July 9, 199), and where the tax authority has no further finalized tax return amount by omitting the original return tax base or refundable tax amount, the amount of refundable tax cannot be determined by Article 21(1) of the Value-Added Tax Act.

Therefore, if a taxpayer is dissatisfied with the above decision of correction by the tax authority and is paid the original return amount, the method of filing a lawsuit seeking cancellation against the above decision of correction shall be applied, and it shall not be exempted from the application of civil procedure (see Supreme Court Decision 94Da3405 delivered on April 12, 196).

2. According to the facts established by the court below, the plaintiff was a corporation which obtained approval of a golf course project plan from the non-party Shindong Construction Co., Ltd. for the construction of a golf course as a corporation in Jeju Nam-gun ( Address omitted), and its input tax amount (including the amount of overdue interest on the service cost) is subject to the deduction of the output tax amount of value-added tax, and the preliminary return of February 1992, the preliminary return of February 1992, the final return of February 1992, the final return of January 1, 1993, and the preliminary return of January 1, 1993. The defendant-head of Jeju District Tax Office refused the deduction or refund on the ground that some of the cost for the construction of a golf course was related to the capital expenditure for the creation of the land which is exempt goods, or that there was a tax invoice different from the fact that there was a tax invoice to correct the tax base, etc. for the scheduled return of February 1, 1992 and the tax amount reported before the reduction of the tax amount reported.

According to the records, the plaintiff, as the cause of the claim in this case, is that the whole input tax amount collected for the above golf course development service should be automatically deducted from the output tax amount pursuant to Article 17 (1) of the Value-Added Tax Act, and the tax invoice related to overdue interest on the service cost cannot be deemed to be different from the facts, and it is clear that the above Jeju Tax Office refuses to refund it, and therefore, it is argued that the defendant is seeking payment by civil procedure as to the portion which has not yet been refunded.

In light of the above circumstances, since the Plaintiff’s declaration of refund of each value-added tax filed by the Plaintiff lost its fixed capacity by the decision of correction of the head of the pertinent Jeju Tax Office and the existence and scope of so-called tax refund subject to a claim for return of unjust enrichment were changed according to the contents of the decision of correction, the above decision of correction is not null and void (in light of the record, no data exists to deem that the above decision of correction is null and void as it is reasonable in light of the record), and the Plaintiff’s assertion that the tax refund pursuant to the original declaration still remains, and the Plaintiff’s assertion that the above decision of correction remains, and only the Plaintiff’s attempt to

Therefore, the plaintiff's lawsuit of this case is unlawful. Since the judgment of the court below which partially accepted the plaintiff's claim on the merits is unlawful, it is clear that the judgment of the court of first instance as to the merits as stated in the judgment of the court of first instance is unlawful, and the lawsuit of this case is dismissed, and the total costs are to be borne by the plaintiff who has lost, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Yong-sik (Presiding Justice)