Daegu District Court 2011 Gohap1973, 2012.30

Since the amount of tax to be collected in excess due to the reduction of the amount of tax due to the disposition of correction, refund and additional dues on refund shall be paid.

Since the amount of inheritance tax has been reduced according to the disposition of correction and the money collected up to that time has been appropriated for the principal tax, the excess collection amount shall be refunded, and there is an obligation to pay additional refund for refund accrued from the day following the date of payment to the date of decision of refund payment.

2012Na20568 National Tax Refund

Lee AA and five others

Korea

Daegu District Court Decision 201Gahap11973 Decided August 30, 2012

March 20, 2013

April 10, 2013

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

· The purport of the Yellow Dust

The purport of the claim: The defendant shall pay to the plaintiffs 1 the amount of KRW 000 and the amount of KRW 000 which is calculated from April 11, 2006, and from May 5, 2011 until the service date of a copy of the application for correction of the claim of this case, 5% per annum and 20% per annum from the following to the date of complete payment.

The purport of appeal: The part against the plaintiffs falling under the order to pay under the following among the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiffs 00 won each amount of 00 won and 20% each year from April 11, 2006 to the date of withdrawal of a duplicate of the written request for correction of each claim of this case from May 5, 2011, and from the following day to the date of complete payment.

1. The fact of assistance;

(a) Report on inheritance tax by TitleB, and application for annual installments and payment in kind of this case;

1) The CCC died on September 13, 1997, and there were the Plaintiffs, who were co-inheritorss of CC and their children. Since the rightB died on April 30, 2009, the Plaintiffs jointly succeeded the rightB.

2) On March 12, 1998, the rightB reported to the director of the tax office North Daegu Daegu District Tax Office under the defendant's jurisdiction the total amount of 000 won of inheritance tax calculated by adding the tax base amount of inheritance tax to 000 won.

3) Based on the provisions of Articles 71 and 73 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5493, Dec. 31, 097; hereinafter referred to as the "former Inheritance Tax Act"), Articles 67 and 70 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15486, Sept. 30, 097; hereinafter referred to as the "former Enforcement Decree of the Inheritance Tax Act") at the time of filing an application for a payment in kind with 000 won among the above inheritance tax amount of KRW 000,000,000, 576.50m2, and 5m20m2 as a property to pay in kind, submitted a statement of property to pay in kind, and applied for a payment in kind for the payment in excess of the above amount in kind by providing a payment in kind to the plaintiff in total at the market price of Daegu North-gu, 1000m21 and Yangcheon-gu building.

4) The director of the North Daegu Tax Office did not make a decision and notification in writing as to whether to grant an application for payment in annual installments of inheritance tax and an application for payment in kind (hereinafter “application for payment in annual installments of this case”).

B. As to the heir of this case, the amount of reduced competition among the heirs of this case

1) On August 5, 199, the director of the North Daegu District Tax Office calculated the inheritance tax base amount by adding assets such as deposits in the name of CCC, which were omitted at the time of filing the said inheritance tax base return to the inherited property value, and imposed and notified each of the instant inheritors on August 31, 1999 for the total amount of KRW 000 as the due date for payment.

2) The above disposition of imposition of inheritance tax was later revised on seven occasions as indicated below (hereinafter referred to as "each disposition of correction" in each of the following table, including "0th corrective dispositionl", and "the total sum of all amounts").

3) On the other hand, thisCCC has jointly and severally guaranteed the obligations of new and optical companies (hereinafter referred to as 'non-party companies'), and the said joint and several liability was not reflected in the value of the inherited property.

4) On October 11, 2004, after the fifth corrective disposition was taken, the instant inheritor had to pay KRW 000 to the director of the North Daegu District Tax Office as the non-party company lost its ability to repay. As such, the instant inheritor had to pay KRW 000 to the non-party company. As such, the instant inheritor considered it as a passive property from the value of inherited property to the inherited property, and filed an application for rectification

5) In accordance with the decision of the National Tax Tribunal (Supreme Court Order 2005Gug851 Decided February 22, 2006), the director of the tax office in North Daegu rejected the above request for correction, and thereafter, 000 won should be recognized as the inheritance obligation, he/she made the 6th correction disposition, and pursuant to the Supreme Court Decision (Supreme Court Decision 2008Du10133 Decided December 9, 201) that the remaining obligations also constitute the grounds for post-regu correction (Supreme Court Decision 2008Du10133 Decided December 9, 2010).

(c) Payment of inheritance tax and refund money;

1) From December 30, 199 to November 15, 2002, the director of the tax office having jurisdiction over North Daegu District Tax Office collected a total of KRW 0000,000 from the instant heirs, and appropriated a total of KRW 000,000, additional dues and increased additional dues (hereinafter referred to as “additional dues, etc.”) as indicated below [Attachment 1], and once thereafter, the principal tax and additional dues, etc. accrued up to that point are fully paid.

[Attachment 1] Collection and Refund of Inheritance Tax, Additional Dues, etc.

(Omission)

2) After the above disposition of full payment, the head of North Daegu District Tax Office took four and five corrective measures, and as stated in the above table, on November 21, 2002, the principal tax was refunded KRW 000 and additional dues, etc., and on February 26, 2004, the principal tax was refunded KRW 000 and additional dues, etc. according to the fiveth corrective measures on February 26, 2004. Accordingly, the instant inheritor paid KRW 000,000 in total, including inheritance tax amount of KRW 000 and additional dues (see the above [Attachment 1](c)1.

3) After that, as described in the above paragraph (b)(5) above, 6 and 7 corrective measures were taken, and the head of the North Daegu tax office, and the head of the North Daegu tax office, as a result of the performance of the refund obligation arising from the 6 and 7 corrective measures, refund 00 won of the 6th corrective disposition refund (00 won + additional dues + 000 won for additional dues + 000 won for additional dues) and 000 won for the 7th corrective disposition refund (including this tax + 000 won for additional dues + 000 won for additional dues) respectively, as described in the table 2 below.

[Attachment 2] The details of the refund of national tax refund money

(Omission)

D. Payment of damages by the defendant

1) Meanwhile, on March 10, 2004, the instant inheritors filed a claim for return of unjust enrichment or damages on the ground that it was unlawful for the instant inheritor to collect additional dues, etc. from the instant inheritor (as for the instant inheritor (as for the instant case’s (c) amount to be paid in the table 1] portion of the total amount of KRW 000 [the remainder after deducting KRW 4,000 from the total amount of KRW 5,00,00 from the total amount of KRW 4, and 00 from the additional dues, etc.) from the instant inheritor, without making a written decision and notification as to whether to grant permission for payment in annual installments and in kind, from December 30, 199 to November 15, 2002).

2) After going through the first instance judgment on July 6, 2006, the appellate court rendered a judgment ordering the present heir to pay the above KRW 000 and the delayed damages from the present heir as a result of the State's liability for compensation, and the appellate court rendered a final judgment on October 25, 2007 (Seoul High Court Decision 2004Na90504), which rendered a final judgment on October 25, 2007 (Supreme Court Decision 2006Da51072) on the grounds that the present heir was paid the annual payment or the amount of tax applied for payment in kind (hereinafter referred to as "amount of tax applied for payment in kind, etc.") calculated by the ratio of the annual payment in annual installments or the amount of tax applied for payment in kind (hereinafter referred to as "amount of tax applied for payment in kind, etc.") among the total inheritance tax amount of KRW 00,000, which became final and conclusive to the heir (Supreme Court Decision 206Da51072).

[Reasons for Recognition] The non-contentious facts, Gap 1 through 6, and Eul 9 (including each number, if any), and Eul 1, and the purport of the whole pleadings

2. Relevant provisions;

Omission

3. Summary of each of the parties' arguments

A. The plaintiffs' assertion

1) The inheritance tax finally borne by the instant heir according to the 7th disposition of rectification is KRW 000, and the inheritance tax from which additional dues are generated is KRW 000 (the amount calculated by deducting the amount of tax applied for payment in kind, etc. from the above inheritance tax amount, since it is not subject to additional dues, etc.). Based on this, a legitimate additional dues, etc. incurred until November 30, 2002 are calculated.

2) The amount of the reasonable collection that the Defendant is liable to impose on the Plaintiffs is KRW 000,000, including inheritance tax, KRW 000,000, and the Plaintiffs actually paid KRW 000,000, including inheritance tax, KRW 000,000 and additional tax (see the above [Attachment 1] (A)].

3) Therefore, the Defendant should refund 000 won, including the inheritance tax collected in excess of the Plaintiffs (00 won - 000 won) and the additional dues (000 won - 0000 won) as national tax refund.

4) However, from November 21, 2002 to May 4, 2011, the Defendants paid 00 won of inheritance tax (=00 won of 4th correction + 000 won (5th correction) + 000 won (6th correction) + 000 won (7th correction) + 000 won (4th correction) + 000 won + 000 won (5th correction (6th correction) + 000 won (6th correction) + 000 won (6th correction) + 1000 won (amount of national tax refund and damages under the Daegu High Court Decision 2004Na9054)) + 000 won (amount of national tax refund and damages under the above Daegu High Court 200, and 00 won should be refunded to each of the Plaintiffs, and the Defendant should have paid 00 won and additional dues to the Plaintiffs.

B. Defendant’s assertion

1) On the basis of each disposition of reduction or correction of inheritance tax, a claim for the refund of national taxes under the disposition has occurred, and if a claim for the refund of national taxes has occurred due to a disposition of reduction or correction, the period from the date of reduction or correction to the expiration

2) In this case, the claim for the repayment of national taxes according to the sixth corrective disposition may be exercised from March 13, 2006, which is the date of the decision, and the lawsuit in this case was filed five years after the decision date, and the claim for the repayment following the sixth corrective disposition was extinguished by the expiration of the extinctive prescription.

4. Determination

The taxpayer's claim for the repayment of national taxes against the excessive amount of national taxes, national taxes, and additional dues, shall be finalized when all or part of the tax obligations are extinguished due to the new decision or the revocation or correction of the disposition (see, e.g., Supreme Court en banc Decision 88Nu6436, Jun. 15, 1989). Therefore, the plaintiff's argument in the plaintiff mold that "it is not known that the plaintiff finally paid the amount in excess of the tax amount due to the 7th corrective disposition for the amount paid by the plaintiff as the reason of the initial disposition shall have one claim for the refund of national taxes", and it is reasonable to view that each claim for the repayment of national taxes equivalent to the amount deducted on the date of the disposition has been filed at each time of the subsequent corrective disposition. Based on the above decision, the existence and scope of each claim for the repayment of national taxes according to the 6th and

(a) A claim for repayment following the sixth corrective disposition;

1) Relevant legal principles

In a case where a tax base and amount of tax are reduced due to an error in the previous tax assessment, the correction is not a new effect to determine the balance of the original tax, but a part of the previous tax assessment (reductioned part) is cancelled or modified. In addition, whether to impose additional dues and increased additional dues on the national tax in arrears under Articles 21 and 22 of the former National Tax Number Act shall be determined on the basis of the initial tax payment period, etc. (see Supreme Court Decision 82Nu532, Sept. 13, 1983). Meanwhile, according to Articles 71(1) and 67(2) and (3), and 70 of the former Enforcement Decree of the Inheritance Tax Act, and Article 67(2) and (70 of the former Enforcement Decree of the Inheritance Tax Act, if the tax amount exceeds 000 won, and the tax amount has been provided, and the application for payment in annual installments has already been submitted by the statutory deadline, it shall be interpreted that the payment in annual installments and the additional dues should be notified in writing.

2) The occurrence of the claim for repayment

According to the above facts, 000 won, which is the tax amount due to the fifth revision disposition, was reduced to 717,244,547 won due to the sixth revision disposition, and inheritance tax due to the death of thisCC at the time of the sixth revision disposition was determined to 000 won on August 5, 199. Therefore, the additional dues, etc. to be paid by the Plaintiffs are to be calculated again on August 31, 1999, and 000 won, which is the deadline for payment of additional dues (if it is excluded from taxes subject to calculation of additional dues, etc.), and the amount of additional refund has been reduced again due to the reduction of the amount of refund due to the sixth revision disposition after the second revision disposition, and the Defendant is liable to pay the amount of refund additionally incurred to the Plaintiffs.

3) Judgment on the defendant's defense for the completion of extinctive prescription

The defendant defense that the right to claim the repayment following the 6th corrective disposition has already expired after the completion of the extinctive prescription, and the right to claim the repayment of national taxes by the inheritors of this case can be exercised from the date of the 5-year extinctive prescription as stipulated in Article 54 of the Framework Act on National Taxes, and from the date of the 6th corrective disposition. The fact that the 6th corrective disposition was in March 13, 2006 is as seen above, and the plaintiff's lawsuit of this case was filed on October 10, 201, and the right to claim the repayment following the 6th corrective disposition has already expired on March 13, 201, which was before the filing of the lawsuit of this case. Therefore, the defendant's defense is justified.

4) Determination on the Plaintiffs’ assertion of suspending extinctive prescription

The plaintiffs, i.e., claims for refund of the amount collected in excess of the amount under the 7th corrective disposition (final disposition) from among the amounts collected by the defendant due to the legitimate refund of national tax, i.e., the amount of the national tax refund, and the plaintiffs filed the claims for cancellation of the inheritance tax imposition on January 22, 2001, and the claims for cancellation of the correction refusal disposition on May 22, 2006, respectively, and each of the above claims is also a means of realizing the claims for refund of the legitimate national tax refund (the plaintiffs asserted that the above lawsuit is substantially identical to the subject matter of the lawsuit). Since the plaintiff's claims for the refund of the above legitimate national tax refund in the lawsuit in this case were suspended as of January 22, 2001, the date on which the plaintiffs withdrawn the correction refusal disposition, and the plaintiff's claims for the refund of the national tax refund on March 10, 2004, should be determined on each of the two different grounds that each of the claims for refund under the National Tax refund claim.

A) Whether extinctive prescription is interrupted due to the filing of a lawsuit against the revocation of the disposition imposing inheritance tax

On January 22, 2001, the plaintiffs, and the successors of this case filed a lawsuit seeking revocation of the initial disposition with the Daegu District Court (Tgu District Court 2001Gu718), and the above lawsuit was affirmed by the Supreme Court on December 24, 2004 through the appellate court (Tgu High Court 2004Nu719 case) (Seoul High Court 2004Nu719 case), and the above lawsuit became final and conclusive by the Supreme Court on December 24, 2004 (Supreme Court 2004Du9968 case). According to the evidence evidence evidence evidence No. 7, the above Supreme Court decision cited by the plaintiff (204Du9968) shows that the above decision became final and conclusive on December 24, 2004, while the claim for the repayment of the plaintiff under the above corrective disposition becomes final and conclusive on December 31, 206, and the claim for the repayment under the above provision becomes final and conclusive on March 16, 2006.

B) Whether the interruption of prescription due to filing a claim, such as damages for additional dues, etc.

The plaintiffs filed a lawsuit with the Daegu District Court on March 10, 2004 for the return of or damages from unjust enrichment, such as additional dues (Tgu District Court 2004Gahap2759), and the above lawsuit was finalized by the Supreme Court on October 25, 2007 (Tgu High Court 2004Na9054) by a ruling dismissing the plaintiff's appeal through the appellate court (the Supreme Court 2006Da51072 case), and the period of extinctive prescription of the right to claim the repayment of additional dues, etc. runs from October 26, 207, the day following the above ruling becomes final and conclusive. The plaintiffs asserted that the above decision was unlawful on March 10, 204, and that the above decision cannot be seen as being unlawful for the reasons that the heir did not issue a written order on March 10, 204 to permit the payment of additional dues, and that the above decision was unlawful for the reasons that the above decision was made to 200 won or more, including additional dues, and additional dues, etc.

다) 경정거부처분 추|소 청구의 소 제기로 인한 시효 중단

On May 22, 206, the Plaintiffs filed a lawsuit seeking revocation of the above corrective disposition (the Daegu District Court 204Guhap153 cases), and the lawsuit seeking revocation of the said corrective disposition was pending in the appellate court (the Daegu High Court 2010Nu2914 case). On April 14, 201, the Plaintiffs’ claim seeking revocation of the above corrective disposition was suspended by the above corrective disposition 30, and the Plaintiffs’ claim seeking revocation of the said corrective disposition was rejected on May 4, 201, 206. This part of the lawsuit seeking revocation of the original corrective disposition 1, 200, 200, 200, 300, 200, 30, 30,000, 20,000, 30,000, 30,000,000, 1,000,000,00,00,00,00).

In addition, there is no evidence suggesting that there is any legal or factual obstacle in exercising the right to claim the repayment according to the 6th corrective disposition, in the situation where the 6th corrective disposition has already been issued, and the right to claim the repayment has already occurred, and due to the 6th corrective disposition, there is no obstacle to the immediate exercise of the right to claim the repayment pursuant to the 6th corrective disposition. Accordingly, the plaintiffs' assertion on this part is without merit.

5) Determination on the Plaintiffs’ assertion of abuse of rights

The Plaintiffs asserted the completion of the extinctive prescription by the taxing authority, which is an expert, that the Defendant, who is obligated to properly calculate the national tax refund to the Plaintiffs, constitutes abuse of rights by infringing on the trust of the taxpayers. The Plaintiffs asserted that the exercise of the right by the obligor’s defense based on the extinctive prescription constitutes an abuse of rights. The exercise of the right by the obligor is subject to the principle of trust and good faith and the principle of prohibition of abuse of rights, which is the alternative principle under the Civil Act, and the obligor’s exercise of the right to claim the reimbursement before the expiration of the prescription, was remarkably difficult or considerably difficult, and the obligor did not act to believe that the obligor’s exercise of rights or interruption of prescription was unnecessary, or that the obligor did not use the right objectively after the expiration of the prescription period, or that the obligor did not use the right to claim the reimbursement after the expiration of the prescription period, and that there is no other specific circumstance that the Plaintiffs’ refusal of the obligation to claim the completion of the extinctive prescription would be contrary to the principle of trust and good faith and thus, should not be recognized as abuse of rights.

(b) Right to request a refund following the seventh corrective disposition;

1) The occurrence of the claim for repayment

According to the above facts, the amount of 00 won, which is the tax amount due to the 6th correction disposition, was reduced to 000 won due to the 7th correction disposition, and the inheritance tax due to the death of CC was finally determined to 000 won on August 5, 1999. Therefore, the additional dues, etc. to be paid by the Plaintiffs should be calculated again on the basis of the tax amount determined on August 31, 1999 and 000 won, which is the initial payment deadline, and since an additional refund has occurred as the amount of refund was reduced again due to the 7th correction disposition under the 6th correction disposition, the Defendant is obliged to pay the amount of refund additionally incurred to the Plaintiffs.

2) Scope of the right to recover the refund

A) Inheritance Tax Refund

(1) From September 1, 1999 to November 15, 2002, the amount of additional dues, etc., paid in kind, etc. for the remaining KRW 000,000, which was reduced according to the 6th corrective disposition, calculated by deducting the amount of applied tax, such as payment in kind, from the amount of the inheritance tax reduced in accordance with the 6th corrective disposition, shall be KRW 00, as described in attached Table 1, and the amount collected until then shall be KRW 00 (see attached Table 1], and the amount collected in excess at the time of the 6th corrective disposition shall be KRW 00,000 (= KRW 000 -00 -00).

(2) According to the 7th corrective disposition, the amount of inheritance tax has been reduced to KRW 000, and the amount of additional dues, etc. accrued until November 15, 2002, which was calculated by deducting the amount of applied tax, such as payment in kind, from the amount of inheritance tax, on the basis of the amount of the 7th corrective disposition, is KRW 000 (if calculating, there may be a little error according to the fractional disposition method), and the amount collected up to that time is KRW 000, and the amount collected in excess at the time of the 7th corrective disposition is KRW 00 (=00 - 000 - 000).

(3) Ultimately, due to the 7th corrective disposition, the Defendant should refund the Plaintiffs KRW 000 (i.e., the amount collected in excess due to the 7th corrective disposition - KRW 0000 - the amount collected in excess due to the 6th corrective disposition).

B. Additional dues on refund

In general, tax refunds fall under unjust enrichment received or held by the State without any legal cause even though tax liabilities existed from the beginning or were extinguished after they were extinguished, and additional dues on refund have the nature of legal interest as legal interest for such unjust enrichment. The provisions of tax law on the contents of additional dues under the tax law are deemed to have the nature of special rule with respect to Article 748 of the Civil Act on the scope of return of unjust enrichment. Thus, additional dues on refund are determined by the initial date and proportion prescribed in each provision on the additional dues, regardless of the good faith or bad faith of the State that is the beneficiary (see, e.g., Supreme Court Decision 2009Da11808, Sept. 10, 2009). As seen earlier, with respect to KRW 00 of additional refunds arising from the 7th corrective disposition, the following day following the date of the payment shall be calculated from November 16, 2002 to May 4, 2011.

(The following table omitted):

C. Sub-committee

Therefore, the defendant is obligated to refund the inheritance tax refund of KRW 000 and additional 000 won to the plaintiffs. The North Daegu Head of the tax office has already refunded the national tax refund of KRW 000 according to the 7th correction disposition and additional dues on refund of the refund, as recognized earlier, and the defendant has to refund KRW 000 won to the plaintiffs (=00 won +00 won -000 won). Since the plaintiffs are co-inheritors equal inheritance, the defendant has a duty to pay damages for delay calculated at the rate of 20% per annum as provided by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from May 5, 2011 to August 30, 2012, which is the date following the date on which the refund decision is determined, which is reasonable for the defendant to resist the existence and scope of the obligation of this case to the plaintiffs.

5. Conclusion

Then, the plaintiffs' claims in this case are justified within the above recognized scope, and each of the remaining claims are dismissed without merit, and the judgment of the court of first instance is just in this conclusion, and all appeals of the plaintiffs are dismissed without merit, and it is so decided as per Disposition.