In accordance with the purport of the previous Supreme Court precedents, it is difficult to deem that the taxation disposition by the Defendants was a serious case where its defect is obvious.

In order to make an unjust enrichment, the tax payment or the collection of the tax must be null and void as there is no legal basis at all under substantive or procedural law or the defect of the tax assessment is significant and apparent.

Request for correction under Article 45-2 of the Framework Act on National Taxes

2015 Ghana 5395203 Unlawful gains

○ Kim

Republic of Korea and one other

May 17, 2016

July 12, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Defendant Republic of Korea pays 5% per annum to the delivery date of a copy of the instant complaint from December 1, 2011 to the date of the delivery of a copy of the instant complaint, and 15% per annum to the date of full payment from the next day to the date of full payment. Defendant ○○-si pays 5% per annum to ○○ and its members from December 1, 201 to the delivery date of a copy of the instant complaint, and 15% per annum from the next day to the date of full payment.

1. Basic facts

A. On July 8, 2005, the Plaintiff, as the head of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was issued a check of an amount equivalent to KRW 1.40 million under the pretext of implieding the construction of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, who received a bribe in connection with his duties, sentenced to imprisonment for five years and the said sentence became final and conclusive

B. On August 5, 2011, Defendant Republic of Korea (competent: ○○ Head of the competent tax office) imposed a tax disposition ordering the Plaintiff to pay global income tax amounting to KRW 140,000,000 as other income by August 31, 201. On the same day, Defendant ○○ City imposed a tax disposition ordering the Plaintiff to pay KRW ○○○ of the local income tax by August 31, 201 (hereinafter “instant tax disposition”).

C. On November 30, 2011, the Plaintiff paid the total amount of KRW 00,000 global income tax and additional tax to Defendant Republic of Korea, and paid KRW 0,000 to Defendant ○○.

D. On January 17, 2012, the Plaintiff paid a surcharge of KRW 1,40,000 to the ○○○ District Prosecutors’ Office ○○○○ Branch Office.

[Reasons for Recognition] Unsatisfy, each entry in Gap evidence 1 to 5 (including virtual numbers), and the purport of the whole pleadings

2. The plaintiff's assertion

According to recent Supreme Court precedents (Supreme Court en banc Decision 2014Du5514 Decided July 16, 2015), each of the instant taxation dispositions is null and void because it imposes taxes on a place where no taxable income exists. As such, the Defendants are obliged to return the amount equivalent to the tax amount paid by the Plaintiff as unjust enrichment due to invalid taxation to the Plaintiff.

3. Determination

In order to make an unjust enrichment, the tax payment or the collection of tax must be null and void, because there is no legal basis at all in substance or in procedure, or there is a significant and apparent defect in the taxation disposition. If the defect in the taxation disposition is limited to the extent that the tax disposition can only be revoked, it cannot be deemed that the tax payment due to such defect constitutes unjust enrichment unless the tax authority voluntarily revokes it or revokes it by the appeal procedure (see Supreme Court Decision 94Da2800, Nov. 11, 1994). Meanwhile, in order to make the tax disposition null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and it should be objectively and objectively obvious that the defect violates laws and regulations, and in determining whether it is significant and apparent, it should be reasonably examined the purpose, meaning, function, etc. of the law that serves as the basis for the pertinent taxation disposition, and it is also necessary to determine the specific fact relevance of the taxation disposition in itself, and it cannot be deemed that there is a significant and objective error in the taxation disposition or its substance.

On July 16, 2015, the Supreme Court: (a) intended to confiscate or collect money from crimes, such as bribe, good offices, and breach of trust under the Criminal Act, to deprive the benefit from criminal acts and prevent holding unlawful profits; (b) so, if confiscation or collection of money was made with respect to such unlawful income, it constitutes a case where the possibility of loss of economic benefits inherent in illegal income is realized. Therefore, as such income is not ultimately realized, it is reasonable to allow taxpayers to claim reduction by proving that there was a change in the basis of calculation of tax base and amount of tax due to the occurrence of a subsequent event after the establishment of tax liability. In other words, even if the tax liability was established once it satisfies the taxation requirements of illegal income control and management, the possibility of loss of economic benefits inherent in illegal income, such as confiscation or collection, and then becomes final and conclusive due to the occurrence of a clear cause for loss of economic income inherent in the original taxation, barring special circumstances, even if the said tax liability becomes invalid after the establishment of each of the above taxation liability based on Article 4-2(1) of the Framework Act can be deemed unlawful and thus, barring special circumstances.

However, the above Supreme Court ruling is merely the purport of the existence of illegality corresponding to the grounds for revocation or correction, and thus, the validity of each taxation in this case should be revoked or corrected by an appeal litigation or by a competent agency. In particular, the above Supreme Court ruling has modified the previous Supreme Court ruling (Supreme Court Decision 2002Du431 Decided May 10, 2002), which is subject to income tax in this case, even when the judgment of additional collection of illegal income became final and conclusive in a criminal case, and thus, it is difficult to deem that each taxation in this case, which the Defendants used in accordance with the purport of the previous Supreme Court ruling, is serious and obvious.

Therefore, the Plaintiff’s claim of this case cannot be accepted unless there is any evidence supporting that the revocation judgment was finalized regarding each taxation disposition of this case, or that the above disposition was revoked or corrected by the competent authority.

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as there is no ground.