Suwon District Court-2016-Gohap-74022 (2016.09.06)

Classification of withholding taxation claims that have been established before the commencement of rehabilitation procedures and have not been due;

Even in cases of withholding tax which was established before the commencement of rehabilitation procedures and for which the deadline for payment has not yet arrived, it shall be deemed a priority claim only if the withholding agent collects money from the original taxpayer and keeps it.

2016Na206824 Undue gains

AAA Corporation

BB

on October 21, 2017

on 017 October 06, 201

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

Cheong-gu Office

【Plaintiff’s claim and purport of appeal】

The judgment of the court of first instance shall be modified as follows. The defendant shall pay to the plaintiff 259,75,830 won and 71,833,830 won among them, the amount calculated by applying each ratio of 5% per annum from March 29, 2013 to the service date of the copy of each complaint of this case, and 15% per annum from the next day to the day of full payment.

[Purpose of Defendant’s Appeal]

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim concerning the revocation shall be dismissed.

1. Basic facts

A. The Plaintiff is a company engaged in the manufacture of railroad signal facilities and electrical construction business.

B. From July 21, 2011 to October 22, 2011, the Defendant-affiliated CCC conducted an integrated investigation of corporate tax (taxable period from January 1, 2006 to December 31, 201) with respect to the Plaintiff. CCC as a result of the aforementioned investigation: ① (i) the Plaintiff’s total sales tax invoice of KRW 1,706,712,202 and the total sales price of KRW 2,337,92,202 were received without real transactions; (ii) the Plaintiff’s funds were leaked out during the process of receiving each tax invoice; and (iii) the Plaintiff’s tax burden was unjustly reduced due to registration in the name of the Plaintiff’s representative by making payment for construction cost delivered from the FF Construction Co., Ltd. to the payment for construction cost; and (iii) the Plaintiff’s excessive payment for the Plaintiff’s expenses were included in the GCC’s account book by considering the Plaintiff’s excessive payment for the construction cost.

C. The GG head denied the deduction of the input tax amount of each of the above tax invoices, and added the portion that deemed that the input tax amount was leaked in excess of the processed sales amount in the same taxable period, and calculated the omitted taxation amount against the Plaintiff by calculating the market value of the real estate registered in HH’s name as the calculation of unjust calculation in the calculation of earnings, etc. In addition, on December 2, 2011, the GG head notified the Plaintiff of the change in the amount of income, which was disposed of as a result of recognizing the Plaintiff’s representative director KK of the total amount of KRW 1,157,572,00,000 in the calculation of earnings, as it was recognized as

D. On February 7, 2012, the Plaintiff dissatisfied with the foregoing taxation disposition by the head of GG, and filed an appeal with the Tax Tribunal on February 7, 2012. On December 12, 2012, the Tax Tribunal rendered a decision to rectify the amount subject to the notice of change in the amount of income by reviewing whether the real transaction was conducted between the Plaintiff and EE, and whether the Plaintiff’s employees were paid benefits.

E. CCC conducted a reinvestigation with the Plaintiff from December 28, 2012 to January 25, 2013 in accordance with the aforementioned reinvestigation decision, and notified the Plaintiff of the results of the relevant tax investigation on January 28, 2013 by reducing part of the initial amount of taxation. The head of GG, based on the above findings, reduced the Plaintiff’s income amount of KRW 440 million for the year 2008, while recognizing KK as the representative director of the Plaintiff’s company on February 1, 2013, and notified the change in income amount of KRW 9539,90 for the year 2009.

F. Since the above taxation, the head of GG did not pay the Plaintiff the withheld labor income tax based on the change in the amount of income of the representative director KK, on February 19, 2013, the amount of KRW 71,83,830 of the value-added tax refund for the second period of 2012 against the Plaintiff was appropriated for the above withheld labor income tax. In addition, on March 14, 2013, the head of GG requested the JJ to collect the amount of national tax in arrears from the Plaintiff and received KRW 187,922,000 from the JJ on March 29, 2013, the head of the GG paid the Plaintiff the amount of tax in arrears with the total of KRW 187,922,000 paid by the JJJ to the Plaintiff on the same day (hereinafter referred to as the “tax claim of this case”).

G. Meanwhile, on November 23, 2011, the Plaintiff filed an application for commencement of rehabilitation procedures with the Seoul Central District Court MM, and the said court rendered a decision on commencement of rehabilitation procedures with respect to the Plaintiff on December 5, 201, and decided the reporting period of rehabilitation claims from December 23, 2011 to January 3, 2012. Moreover, on April 18, 2012, the said court issued the rehabilitation plan approval order with respect to the Plaintiff on the same day. However, the GG head did not report rehabilitation claims regarding the claim subject to withholding after the expiration of the reporting period of the said rehabilitation claim, and filed a subsequent supplement report on the rehabilitation claim only on June 24, 2012 after the completion of the said meeting of interested persons. The said court dismissed the Plaintiff’s rehabilitation plan’s completion of rehabilitation procedures on the ground that the Plaintiff’s report on the rehabilitation claim was filed on December 21, 2012.

[Ground of recognition] Facts without dispute, Gap 1, 2, 3, 6 through 10, Eul 1 through 9

this Court's findings of the fact-finding reply to JJ, as a whole, the purport of this Court's arguments.

2. Formation of a claim for return of unjust gains;

A. The parties' assertion

1) Plaintiff

The claim subject to withholding tax of this case constitutes a rehabilitation claim under Article 179(1)9 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “DR”). However, since GG did not report the claim subject to withholding tax of this case as a rehabilitation claim in the rehabilitation procedure against the Plaintiff by the deadline for reporting rehabilitation claims, the claim subject to withholding tax of this case was forfeited and exempted pursuant to Article 251 of the Debtor Rehabilitation Act. Nevertheless, GG head appropriate the claim subject to withholding tax of the Plaintiff as the claim subject to withholding tax of this case by the JJ upon the request of the JJ for collection of the Plaintiff’s claim for construction price, and the said claim was paid by the JJ, which is based on forfeited and exempted claims, the Defendant must return each of the above amounts to the Plaintiff as unjust enrichment.

2) Defendant

A) A claim subject to withholding tax of the instant case is based on the notice of change in the amount of income issued on February 1, 2013, and thus constitutes a public-interest claim arising after the commencement of rehabilitation procedures.

B) Even if a claim subject to withholding tax of this case arising from a property claim arising prior to the commencement of rehabilitation procedures, the payment deadline is January 10, 2012, and has not yet arrived at the time of December 5, 201, which is the commencement date of the Plaintiff’s rehabilitation procedures, and thus, the claim subject to withholding tax of this case constitutes a public-interest claim under Article 179(1)9 of the Debtor Rehabilitation Act.

B. Determination

1) Whether the bonds subject to withholding tax of this case constitute public interest bonds

A) As to whether it constitutes a public-interest claim arising from the commencement of the instant rehabilitation procedure

(1) Whether a tax claim constitutes a "property claim arising from a cause prior to the commencement of rehabilitation procedures" under Article 118 of the Debtor Rehabilitation Act is determined on the basis of whether a taxation requirement under the Act is satisfied before the commencement of rehabilitation procedures and the relevant tax claim is established. However, where a tax authority disposes of a corporation's outflow from the company as a representative bonus and notifies a change in the amount of income, the liability to pay the tax on the earned income subject to withholding tax is established at the time when the notice of change in the amount of income is served. Thus, if a notice of change in the amount of income is served on the pertinent corporation after the commencement of rehabilitation procedures, the tax claim subject to withholding is generated after the commencement of rehabilitation procedures and does not constitute a rehabilitation claim under the Debtor Rehabilitation Act (see, e.g., Supreme Court Decision 2012Du233

(2) As seen earlier, on December 2, 201, the GG head deemed KRW 1,157,572,00 as an outflow amount, and notified the Plaintiff’s representative director of the change in the amount of income that the income was disposed of as a result of recognition of the Plaintiff’s representative director. Based on the results of the CCC’s tax investigation conducted by the Tax Tribunal on February 1, 2013, the amount of income accrued in 2008 was reduced to KRW 440 million and the notice of change in the amount of income that reduced the amount of income accrued in 2009 to KRW 9,539,90. The decision to commence rehabilitation with the Plaintiff was made on December 5, 2011, between the date of the notice of change in the amount of income accrued in 209.

However, the disposition of reduction or correction is not an initial tax return or imposition disposition and a separate independent tax disposition, but its substance is merely an amendment of the initial tax return or imposition disposition (see, e.g., Supreme Court Decision 2012Du7370, Mar. 13, 2014). Therefore, a claim subject to withholding of this case is deemed to have been established on December 2, 201, when the first notice of change of income amount was issued, and the second notice of change of income amount, which is the second correction disposition, cannot be deemed to have been issued on February 1, 2013.

Therefore, since a claim subject to withholding, which was established before December 5, 201, which was the date of the decision on commencing the rehabilitation procedure of this case, was a claim for property arising from the cause before the commencement of the rehabilitation procedure, the defendant's assertion that the claim subject to withholding tax of this case is a priority claim arising after

B) Whether a claim subject to withholding constitutes a priority claim under Article 179(1)9 of the Debtor Rehabilitation Act

(1) A tax claim that was established before the commencement of rehabilitation procedures, which was withheld at the time of the commencement of rehabilitation procedures, shall be deemed a public-interest claim pursuant to Article 179(1)9(a) of the Debtor Rehabilitation Act.

In principle, the deadline for payment under Article 179(1)9 of the Debtor Rehabilitation and Bankruptcy Act is not the designated due date determined by the tax authority’s intent, but the statutory due date for payment under which individual tax-related Acts provide objective and clear (see, e.g., Supreme Court en banc Decision 2010Du27523, Mar. 22, 2012). However, a corporation liable for withholding taxes is obligated to pay withheld income tax by the 10th day of the month following the month in which the date of collection falls (Article 128(1) of the Income Tax Act), and a withholding agent collects income tax at the time of paying income (Article 128(1) of the Income Tax Act). As such, the date of collection is deemed the date of receipt of a notice of change of income under Article 192(2) of the Enforcement Decree of the Income Tax Act in cases of withholding income tax on the income disposed of by the tax authority is deemed the date of payment of income amount. Accordingly, a corporation liable for withholding

As seen earlier, the GG head deemed KRW 1,157,572,00 as an outflow from the company on December 2, 201 and notified the change in the amount of income that is disposed of as a result of the Plaintiff’s recognition of KK’s representative director. As such, the instant claim subject to withholding tax was concluded on December 2, 201, which the Plaintiff received the notice of change in the amount of income, and the payment deadline is January 10, 2012. Accordingly, the instant claim subject to withholding tax had already been established at the time the instant rehabilitation procedure commenced, but the payment deadline has not yet arrived.

(2) However, the proviso of Article 179(1)9 of the Debtor Rehabilitation and Bankruptcy Act provides that “The taxes imposed on bonuses deemed reverted to the representative under the provisions of Article 67(1)9 of the Corporate Tax Act shall be priority claims only if they are withheld.” Thus, even in the case of withholding tax which is not yet due prior to the commencement of rehabilitation procedures, only if the withholding agent actually collects and keeps money from the original taxpayer. However, in the instant case, there is no evidence to prove that the Plaintiff, who is the withholding agent, actually withheld the amount of money equivalent to the amount subject to withholding tax of this case from KKK, which is the original taxpayer, and thus, the instant claim subject to withholding tax of this case cannot be deemed a priority claim. Accordingly, the Defendant’s assertion

2) Formation of a claim for return of unjust enrichment

A) Article 131 of the Debtor Rehabilitation Act provides that "no act extinguishing rehabilitation claims, such as repayment or repayment, shall be performed without following the rehabilitation plan, except as otherwise provided for in the rehabilitation plan after the commencement of rehabilitation procedures: Provided, That in cases where the custodian reimburses the rehabilitation claims with the permission of the court, and where the custodian claims under Article 140 (2) (the claims that can be collected under the National Tax Collection Act or the Framework Act on Local Taxes), and where disposition on default, disposal of security rights, or continuation thereof is permitted, the same shall not apply to cases where a third-party debtor voluntarily performs the claims of the debtor who are seized in accordance with the disposition on default, while the disposition on default is suspended." In rehabilitation procedures, the act that a rehabilitation creditor obtains the satisfaction of the rehabilitation claim by any method other than that provided for in Article 131 of the Debtor Rehabilitation Act is prohibited, and the relevant act is null and void (see, e.g., Supreme Court Decision 80Do1597, Oct. 14, 1980).

As seen earlier, the instant claim subject to withholding was caused by the cause prior to the commencement of rehabilitation procedures against the Plaintiff, who is the rehabilitation debtor, but was disposed of pursuant to Article 67 of the Corporate Tax Act, but is not withheld as a tax claim on the bonus from the representative of the Plaintiff, who was disposed of pursuant to Article 67 of the Corporate Tax Act, and thus constitutes a rehabilitation claim under the Debtor Rehabilitation Act. However, in the rehabilitation procedure against the Plaintiff, the instant claim subject to withholding was forfeited and exempted under Article 251 of the Debtor Rehabilitation Act.

Therefore, the Defendant’s act of using the amount of value-added tax refunded by the Plaintiff as part of the instant obligation subject to withholding based on the claim subject to withholding, which was forfeited or exempted after the approval for rehabilitation plan was issued against the Plaintiff, at will, upon receiving a request for collection of the amount of government-funded construction work unpaid to JJ, which is the Plaintiff’s debtor, and then appropriating the amount of the instant obligation subject to withholding to the Plaintiff, as a means other than the method prescribed in Article 131 of the Debtor Rehabilitation Act,

Thus, the defendant is obligated to pay the plaintiff the refund of value-added tax, the amount of the government-funded construction cost, and damages for delay on each of the above amounts, which are appropriated for the claim subject to withholding of this case.

3) As to the defendant's assertion of natural debt repayment

A) Defendant’s assertion

Even if a claim subject to withholding tax of this case was forfeited or exempted as a rehabilitation claim, it exists as a natural debt legally effective, so the Defendant’s payment of KRW 187,922,00 by JJ with the consent of the Plaintiff does not constitute unjust enrichment.

B) Determination

The main text of Article 251 of the Debtor Rehabilitation Act provides, “When it is decided to grant authorization for the rehabilitation plan, the debtor is exempted from liability for all rehabilitation claims and rehabilitation security rights except for the rights recognized by the rehabilitation plan or by the law, and all the rights of shareholders and equity right holders and the debtor’s property are extinguished.” Here, it is reasonable to view that the forfeited and exempted claims themselves continue to exist, but they cannot compel the company to perform. Therefore, even if it was decided to grant authorization for the rehabilitation plan against the plaintiff, the obligation subject to withholding tax of this case continues to exist as a natural obligation, and the natural obligation cannot be deemed as unjust enrichment for the creditor when the debtor performs at will.

However, as the Plaintiff did not pay the withholding tax of this case, on March 14, 2013, the GG head sent a public notice to the JJ, the Plaintiff’s debtor, to request cooperation in collecting the Plaintiff’s amount of national taxes in arrears among the Plaintiff’s claim for the construction payment. Accordingly, the fact that the JJ received KRW 187,92,00 from the JJ and appropriated the claim subject to withholding tax of this case as seen earlier, and based on the evidence evidence No. 8, the Plaintiff issued a certificate of tax payment that “the Plaintiff, on March 29, 2013, issued to the GG head the corporate tax of KRW 7,668,90 for the year 2006, and the corporate tax of KRW 172,091,070 for the year 208, with the exception of the corporate tax of KRW 172,091,070 for the payment of the Plaintiff’s claim for construction payment. However, it is difficult to deem that there was no other evidence to acknowledge the payment of the Plaintiff’s obligation.

Therefore, the fact that the JJ paid KRW 187,922,00 to the Plaintiff’s claim for the payment of the construction cost cannot be deemed as a valid repayment because it cannot be deemed as a debtor’s voluntary repayment. Therefore, it is reasonable to deem that the Defendant’s receipt of KRW 187,922,00 from the JJ constituted unjust enrichment in relation to the Plaintiff. The Defendant’s assertion on different premise is without merit.

4) As to the Defendant’s assertion that the Plaintiff’s claim against JJ did not extinguish

A) Defendant’s assertion

If the JJ pays 187,922,00 won to the Defendant without the consent of the Plaintiff, it is paid without the consent of the obligee and does not take effect as repayment in relation to the Plaintiff. Therefore, the Plaintiff still holds a claim for construction payment against the JJ, and the said amount received by the Defendant does not constitute unjust enrichment.

2) Determination

Article 472 of the Civil Act provides that, even in cases of performance to a person who is not authorized to receive reimbursement in order to avoid the formation of a legal relationship for the return of unnecessary chain unjust enrichment, it shall be effective to the extent that an obligee receives benefit from the obligee. The term “case where an obligee receives benefit” includes not only cases where a person who received performance delivers the performance received to the obligee, but also cases where the obligee incurs substantial benefit from the obligee by appropriating the performance to the obligee’s performance of the obligation, or by extinguishing the obligee’s existing obligation by instead of the obligee’s performance to a third party (see Supreme Court Decision 2013Da17117, Oct. 15, 2014).

As seen earlier, the Defendant, who is not authorized to receive payment as above, received the Plaintiff’s claim for the construction cost of KRW 187,922,00 from the JJ and appropriated it for the Plaintiff’s repayment of tax liability against the Defendant. As such, the repayment by the JJ eventually becomes effective as it constitutes a case where the Plaintiff, the obligee, has a substantial interest. Accordingly, the Plaintiff’s claim for the said construction cost against the JJ was extinguished, and the Plaintiff may claim the return of the said repayment as unjust enrichment against the Defendant, who received the Plaintiff’s construction cost without authority (see, e.g., Supreme Court Decision 2015Da71856, Jul. 14, 2016).

3. Scope of claim for return of unjust gains;

The Defendant is obligated to pay to the Plaintiff the sum of KRW 259,755,830 (=71,833,830 + 187,922,000 +) and damages for delay therefrom. Meanwhile, the Plaintiff seek damages for delay under the Civil Act and the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from March 29, 2013, which is the date national tax refund was appropriated, for KRW 71,83,830 out of the above amount to the Defendant.

However, the above obligation to return unjust enrichment is an obligation with no fixed due date, and the Defendant is liable for delay from the time of receipt of the claim for performance. According to the evidence evidence Nos. 1, 2, and 3, it is recognized that the Plaintiff filed a lawsuit seeking nullification of the collection of the claim subject to withholding tax of this case against the head of GG prior to the filing of the lawsuit in this case, and that the above collection disposition was null and void as a matter of course. However, the above recognition alone cannot be deemed to have claimed the return of unjust enrichment as seen earlier against the Defendant, and there is no other evidence to acknowledge the fact that the Plaintiff sought the return of the above unjust enrichment against the Defendants prior to

Therefore, with respect to the Plaintiff’s unjust enrichment amounting to KRW 259,755,830 and KRW 71,833,830 among them, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at each rate of 15% per annum under the Civil Act from January 16, 2016, following the day following the day when a duplicate of the complaint in this case was served on the Defendant, and from April 27, 2016, the day following the day when a duplicate of the application for modification of the purport of this case and the cause of the claim in this case was served on the Defendant, to the day when each Defendant rendered a decision of the first instance, for the existence or scope of the obligation to perform, 5% per annum under the period from September 2, 2016, and from the next day until the day when the full payment is made.

5. Conclusion

Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, all appeals filed by the plaintiff and the defendant are dismissed.