National Agricultural Cooperative Federation (Bae, Kim & Lee LLC, Attorneys Cho Jae-min et al., Counsel for the defendant-appellant)

Republic of Korea (public-service advocates, Counsel for defendant-appellant)

November 30, 2017

1. The plaintiff's claim is dismissed.

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

For the Plaintiff KRW 140,114,121 and KRW 74,649,360 among them, the Defendant shall pay to the Plaintiff 6% per annum from March 29, 2016 to the delivery date of each complaint of this case, and 15% per annum from the next day to the day of complete payment.

1. Basic facts

A. The Plaintiff paid KRW 3,556,426,270, respectively, on December 14, 2009 and February 16, 2010, according to the imposition disposition, such as comprehensive real estate holding tax on November 16, 2009 against the Plaintiff by the Defendant (the head of the competent tax office). Moreover, the Plaintiff reported the comprehensive real estate holding tax on December 14, 2010 and paid KRW 3,725,078,480, respectively, on February 15, 2011.

B. According to the first disposition on October 29, 2012 issued by the Defendant on the ground of the addition of taxable objects, the Plaintiff additionally paid KRW 2,217,560 as the comprehensive real estate holding tax for the year 2009 and the comprehensive real estate holding tax for the year 2010, etc. on November 30, 2012 and KRW 2,217,560.

C. As of May 23, 2014, the Defendant’s second disposition of increase in the size of taxable object and the type of taxation on the ground of the change in the size of taxable object, the Plaintiff additionally paid KRW 559,826,840 as the comprehensive real estate holding tax for the year 2009, June 13, 2014, and KRW 541,65,050, and the comprehensive real estate holding tax for the year 2010 on June 15, 2015.

D. According to the Supreme Court Decision 2015Du4150 (No. 2010Guhap32891 of the Seoul Administrative Court of the first instance) which the plaintiff et al. filed a claim for revocation of comprehensive real estate holding tax against the director of the tax office, etc., the defendant issued 2015Du4150 (No. 2010Guhap32891 of the Seoul Administrative Court of the first instance) on the ground that the amount of property tax to be deducted was undercalculated, etc. on March 28, 2016: (i) refund money, etc. for comprehensive real estate holding tax for the year 209 above; (ii) refund money for the total amount of KRW 541,65,050 of the refund money and KRW 250 of the refund money, KRW 2050 of the above 200, KRW 1265,490 of the refund money and KRW 2940 of the refund money for additional 205,196.20

[Ground of recognition] There is no dispute, Gap evidence 1 to 5, Eul evidence 1 to 1 (including paper numbers) and the purport of the whole pleadings

2. The plaintiff's assertion

Article 43-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes (Additional Payment on Refund of National Taxes) refers to cases where the requirements for payment in installments are met under individual tax laws, and payment following the above 1, 209 through 2010 for comprehensive real estate held in the year 209 through 2010 does not fall under the above installment payment, and the above 1, 2, and 1, 2, and 1, 2, 2009 through 2010 shall not be paid in installments, so the above 1,200, 114, 121, 1, 121, 2, the Defendant’s additional payment on refund, which the Defendant did not pay

3. Determination

Article 43-3 of the Enforcement Decree of the Framework Act on National Taxes provides that "the initial date of calculating the national tax refund and additional dues prescribed by Presidential Decree" in Article 52 of the Act shall be the date following the date classified as follows: 1. National tax refund accrued due to erroneous or double payment, or correction or cancellation of a return or imposition that forms the basis of the relevant payment: Provided, That if the national tax is paid in two or more installments, it shall be the last payment date, but if the national tax refund exceeds the last payment, it shall be the due date of national tax computed retroactively in the order of due dates until the national tax refund reaches such due amount. Thus, the national tax refund shall be the due date of each national tax refund computed retroactively in the order of due dates until the national tax refund exceeds the last payment. The refund constitutes unjust enrichment received by the State without any legal cause even if there is no tax liability from the beginning or even after the refund expires, and the provisions of the tax law on the contents of additional dues have the nature of statutory interest on the unjust enrichment. Thus, additional dues shall be determined by the respective provisions on the starting date and additional dues, regardless of good faith.

In full view of the purport of the entire pleadings, the payment of comprehensive real estate holding tax pursuant to the first disposition and payment by self-return on the same taxable year and goods subject to taxation, and the payment of comprehensive real estate holding tax pursuant to the second disposition by rectification of increase in the number of taxable years and goods shall commence based on the actual payment date in succession. Therefore, it is reasonable to apply the case where the payment in installments was made twice or more pursuant to the proviso of Article 43(1)1 of the Enforcement Decree of the Framework Act on National Taxes, and the Plaintiff’s assertion

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

Judges Lee Dong-hoon