(a) Where a taxpayer of the securities transaction tax returns a reduction or correction, but the tax authority fails to correct the correction within the statutory period, whether the tax authority may claim for a refund of the already paid tax amount equivalent to the difference between the original return and the revised return for a civil lawsuit against the State;

(b) Where a taxpayer reports and pays the tax base and tax amount by deeming that the relevant taxable object is not a non-taxable object even though it is non-taxable object, whether a revised return may be filed pursuant to Article 45 (1) of the former Framework Act on National Taxes;

(c) Where stock certificates are sold, the requirements for non-taxation under subparagraph 2 of Article 6 of the Securities Transaction Tax Act;

A. According to Articles 45(1) and 45(2) of the former Framework Act on National Taxes (amended by Act No. 4810, Dec. 22, 1994); Article 25(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 14473, Dec. 31, 1994); and Article 10-2 subparag. 1 of the Enforcement Decree of the Framework Act on National Taxes, in cases of securities transaction tax for which the method of return is taken, the taxpayer has reported the tax base and the amount of tax to be paid within the statutory due date of return; where the taxpayer has discovered omissions or errors; the tax base or the amount of tax to be paid initially reduced or increases the tax amount to be paid; the tax authority has an obligation to correct the amount of tax to be paid at the same time by conducting an investigation into the original return and notify the taxpayer of the result within 60 days before the statutory due date of return; where the tax authority has already rejected the return due to an erroneous determination of the tax amount to be paid.

B. The phrase “when an omission or error exists” under Article 45(1) of the former Framework Act on National Taxes refers to a case where a return is filed in conformity with the substance concerning the matters on which the tax base or tax amount is calculated, and where a return is filed in accordance with the substance, and where there is no error or omission pursuant to the provisions of statutes in calculating the tax base or tax amount based on such report. In a case where the taxpayer reported and paid the tax base and tax amount by deeming that the pertinent taxable object is not a non-taxable object even if it falls under the non-taxable object, it shall be deemed that the return of modification may be filed in accordance with the provisions of the Act and subordinate statutes in calculating the tax base or tax amount, and it shall not be deemed that

C. In the case of public offering of outstanding shares, when the issuer is exempted from submitting a securities registration statement under the proviso of Article 8 (1) of the former Securities and Exchange Act (amended by Act No. 4469 of Dec. 31, 191), it shall be exempted from the securities transaction tax pursuant to Article 6 (2) of the Securities Transaction Tax Act only if it falls under the public offering of outstanding shares under Article 2 (4) of the same Act. However, when the issuer is obligated to submit a securities registration statement pursuant to the main sentence of Article 8 (1) of the former Securities and Exchange Act, it shall be exempted from the securities transaction tax only if it falls under the public offering of outstanding shares

A.B. Article 45(1) of the former Framework Act on National Taxes (amended by Act No. 4810, Dec. 22, 1994); Article 45(2) of the former Framework Act on National Taxes (amended by Act No. 4810, Dec. 22, 1994); Article 10-2 subparag. 1 of the Enforcement Decree of the Framework Act on National Taxes; Article 25(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 14473, Dec. 31, 1994); Article 741 of the Civil Act; Article 6 subparag. 2(c) of the Securities Transaction Tax Act; Articles 8(1) and 2(4) of the former Securities and Exchange Act (amended by Act No. 4469, Dec. 31, 1991)

A. Supreme Court Decision 85Nu883 delivered on January 31, 1989 (Gong1989, 353) 91Nu13 delivered on April 28, 1992 (Gong1992, 1766) 93Da54767 delivered on May 13, 1994 (Gong1994Sang, 1671) B. Supreme Court Decision 84Nu535 delivered on May 26, 1987 (Gong1987, 1073)

Hyundai Heavy Industries Ltd.

Plaintiff 1 and 1 others, Counsel for the plaintiff-appellant

Head of Donggsan Tax Office

Busan High Court Decision 93Gu1664 delivered on June 3, 1994

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

According to the reasoning of the judgment below, if the above disposition of the plaintiff Hyundai Heavy Industries Co., Ltd. (the plaintiff Hyundai Heavy Industries Co., Ltd., which was absorbed into the plaintiff Hyundai Heavy Industries Co., Ltd., which had been pending in the judgment of the court below on December 31, 1993, and had been lawfully taken over the procedure at the trial, the court below held that the above disposition of the plaintiff Hyundai Heavy Industries Co., Ltd., Hyundai Heavy Industries Co., Ltd., Hyundai Heavy Industries Co., Ltd. and the plaintiff Hyundai Heavy Industries Co., Ltd. (the plaintiff et al., the plaintiff et al.) did not issue non-listed shares 1,326,452 shares of 13,232,54,00 won for non-taxable shares issued by the plaintiff Hyundai Heavy Industries Co., Ltd. (the plaintiff et al., the plaintiff et al., the above disposition of the plaintiff's non-taxable shares should be deemed to fall under non-taxable securities transaction tax exemption under Article 6 subparagraph 2 of the former Securities Transaction Tax Act.

Article 45(1) and (2) of the Framework Act on National Taxes (Article 25(2) and Article 10-2 subparag. 1 of the Enforcement Decree of the same Act) provides that a taxpayer shall report the tax base and the amount of tax to be paid within the statutory due date of return, and shall give an opportunity to correct any error found in the reported matters, and where there are matters to reduce the tax base or the amount of tax to be paid at the same time, the tax authority shall investigate the result of correction and notify the person who filed the original return within 60 days, and shall not immediately change the tax liability due to the original return. See Article 45(1) and (2) of the same Act and Article 10-2 subparag. 5 of the same Act. 9 of the same Act provides that the tax base and the amount of tax to be paid at the same time shall be reduced by 30 days after the original return shall be deemed to have been accepted and the tax base and the tax amount to be paid at the same time shall not be deemed to have been paid at the same time.

However, according to the records, on March 9, 192 and March 10, 1992, the plaintiff et al. transferred non-listed stocks to the defendant as the securities transaction tax, and paid 66,162,760 won as the securities transaction tax, and the transfer of the above stocks becomes subject to non-taxation under the above Article of the above Act. However, on April 10 of the same year within the deadline for the revised return, the plaintiff et al. filed a revised return of tax base of securities transaction tax to be refunded in full, but the defendant et al. did not make any disposition against the above revised return within the statutory deadline. Thus, the plaintiff et al., the taxpayer et al. did not have any other data that can be viewed as the invalidity of the original return. Thus, in order to refund the above paid tax, the defendant et al., who is the tax authority refusing a request for correction under the above provision of the above law, should first seek the cancellation of the original appeal, and even if the plaintiff et al. refused a revised return.

Nevertheless, the court below's rejection of the lawsuit in this case by the plaintiff et al. on the ground that the amount of the above tax paid erroneously or erroneously by the tax authority without any legal ground is determined by the claim for refund of national tax, and without any action by the tax authority, the claim for refund can be filed for a civil procedure. The defendant's rejection of the lawsuit in this case by the plaintiff et al. on the ground that it cannot be deemed that there was a rejection disposition due to the plaintiff's failure to respond

However, Article 6 subparagraph 2 of the Securities Transaction Tax Act provides that no securities transaction tax shall be imposed on the public offering of the stock certificates pursuant to Article 8 of the Securities and Exchange Act, and Article 8 (1) of the former Securities and Exchange Act (amended by Act No. 4469 of Dec. 31, 191; hereinafter the same) provides that the issuer may not submit a registration statement on the securities to the Securities Management Committee (the Committee) and submit it to the Securities Management Committee (the Committee) unless the public offering of the securities does not fall under any of the following subparagraphs, and Article 2 (4) of the same Act provides that "the public offering of the securities in this Act shall be made on equal terms to many and unspecified persons, or shall invite them to make an offer to sell the securities already issued on equal terms and conditions". Thus, in selling the stock certificates, if the issuer is exempted from submitting a registration statement under the proviso of Article 8 (1) of the former Securities and Exchange Act, it shall be exempt from taxation on the securities sale under Article 2 (4) of the same Act, or even if the issuer is obligated to submit a registration statement under the Securities and Exchange Act.

However, according to the records, between December 10, 191 and December 13 of the same year, the Plaintiff, etc. notified members of the employee stock ownership association of the issuing corporation and the executives and employees of the affiliates of the so-called Hyundai Group to make an offer to purchase the stocks of this case, which are non-listed stocks issued by them. On December 19, 199 of the same year, the Plaintiff, etc. recommended an offer to purchase the stocks by receiving approximately 100,000 subscription from about 10,000 members of the employee stock ownership association of the issuing corporation who wishes to purchase the stocks of this case. The issuing corporation, which is the issuer of the stocks of this case, submitted a securities registration statement to the Committee pursuant to Article 8 (1) of the former Securities and Exchange Act, but submitted a corrective registration statement to the Committee on December 28, 199, and received it immediately.

In this case where there is no reason under the proviso of Article 8 (1) of the former Securities and Exchange Act, in order to be exempt from securities transaction tax pursuant to Article 6 (2) of the Securities Transaction Tax Act, the issuing corporation should submit and accept the securities registration statement of this case to the commission in accordance with the main sentence of Article 8 (1) of the former Securities and Exchange Act prior to the act of selling securities under Article 2 (4) of the former Securities and Exchange Act with respect to the shares of this case. The plaintiff, etc., submitted the securities registration statement of this case to many and unspecified persons including members of employee stock ownership association of the issuing corporation, etc. before the submission and acceptance of the registration statement of this case, and recommended the purchase subscription of the shares of this case, which are already issued under the same conditions as above, to sell the shares of this case. Thus, the securities transaction tax of this case cannot be deemed to be exempt from taxation pursuant to Article 6 (2) of the Securities Transaction Tax Act, and therefore the defendant's disposition rejecting the revised registration statement of this case against the plaintiff, etc.

Although the court below did not dismiss the plaintiffs' claim of this case on the ground that there is no reason to do so and dismissed it on the ground that it was unlawful, it cannot be sentenced to a judgment of dismissal that is more unfavorable to the plaintiffs under the principle of prohibition of disadvantage in the case that only the plaintiffs appealed, and therefore, it is inevitable to dismiss all the appeals of

Therefore, all appeals of this case are dismissed, and the costs of appeal are assessed against the plaintiffs who have lost them. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Yong-sik (Presiding Justice)