Early High Court Decision 2009J3960 ( December 23, 2009)

Collection disposition is not a disposition that is not an object of appeal litigation.

The final return is not a disposition subject to an appeal litigation, but a tax payment notice is not a disposition based on collection based on the Plaintiff’s voluntary report and payment without payment.

2010Nu28856 The revocation of the disposition to impose capital gains tax.

Dok-si

O Head of tax office

1. The plaintiff's appeal is dismissed.

2. The claim for the preliminary claim added at the trial shall be dismissed; and

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

4. On August 13, 2009 and August 13, 2009, the entries in the purport of the claim in the judgment of the court of first instance were corrected on August 10, 2009 to August 10, 2009, respectively.

1. Purport of claim

In the first place, the Defendant’s disposition of imposing capital gains tax of KRW 54,446,350 against the Plaintiff on August 10, 2009 is revoked (it seems that the date of imposition by the Plaintiff was not specified but is subject to the notification of August 10, 2009).

Preliminaryly, the defendant shall pay to the plaintiff 56,73,090 won with 5% interest per annum from October 21, 2009 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment (the plaintiff added the conjunctive claim at the trial).

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of capital gains tax of KRW 54,446,350 against the plaintiff on August 10, 2009.

1. Details of the disposition;

The reasoning for this part of this Court is that it is identical to the corresponding part of the judgment of the court of first instance except for the addition of "No. 20 evidence No. 1" to the grounds for recognition, and therefore, it is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Determination as to the legitimacy of a lawsuit on the main claim

The reasoning for this part is that the court's reasoning is the same as the entry of the fifth through third parties under the second part of the judgment of the court of first instance, and thus, this part is acceptable in accordance with Article 420 of the Civil Procedure Act of Article 8 (2) of the Administrative Litigation Act.

3. Determination as to the legitimacy of the lawsuit on the conjunctive claim

A. The plaintiff's assertion

Since the final return of this case was made by the above KimB based on the tax base return of capital gains forged by stealing the Plaintiff’s name, the dispatch of goods, and the calculation statement of stock transfer income amount, the defect is significant and apparent, and thus the defect is null and void. The Defendant, based on the final return of this case, which is null and void as a matter of course from the Plaintiff, obtained unjust enrichment and suffered loss to the Plaintiff by purifying KRW 56,733,090 without any legal cause. As such, the Defendant is liable to pay the Plaintiff KRW 56,733,090 and delay damages

B. The defendant's main defense

Even if it is possible to file a claim for return of unjust enrichment as alleged by the plaintiff, the claim should be filed against the country, not the defendant, so the lawsuit against the defendant is unlawful.

C. Determination

In a lawsuit claiming restitution of unjust enrichment due to tax error, the subject of the lawsuit shall be the defendant of the lawsuit. The transfer income tax paid by the plaintiff shall be reverted to the State as national tax. As such, the lawsuit claiming restitution of unjust enrichment equivalent to the transfer income tax paid by the plaintiff shall be filed against the State, which is the subject of such attribution. The defendant cannot be the defendant of the lawsuit claiming restitution of unjust enrichment due to the lack of party capacity under the Civil Procedure Act as an administrative agency. Therefore, the plaintiff's lawsuit claiming restitution of unjust enrichment against the defendant against the non-party

4. Conclusion

Therefore, all of the plaintiff's conjunctive claims are dismissed, since the plaintiff's main claim part and the conjunctive claim part added in the trial are unlawful, and the judgment of the court of first instance which dismissed the lawsuit as to the main claim part is just, and therefore, the plaintiff's appeal is dismissed as it is without merit, and the lawsuit for the conjunctive claim added in the trial is dismissed as well as the lawsuit for the conjunctive claim added in the court of first instance. The judgment of the court of first instance is erroneous as of August 13, 2009 as of August 13, 2009 and August 13, 2009 as of August 10, 2009 as stated in the purport of the claim. Thus, it is so decided as per Disposition.