The notification shall specify the summary of the offense, applicable provisions of the law, amount of penalty, etc. in detail in accordance with Articles 254 and 323 of the Criminal Procedure Act.

The notification of this case is recognized to be invalid because there is a serious and apparent defect in the notification of this case, and there is no statement about the date and method of the crime to the extent that the facts can be specified, the amount of evaded tax, etc.

Article 15 of the Procedure for the Punishment of Tax Evaders Act, the preparation and service of documents under Article 13 of the Enforcement Decree of the Procedure for the Punishment of Tax Evaders Act

2016 Doz. 45536 Unjust Enrichment

AA et al.

Korea

September 29, 2016

December 29, 2016

1. The defendant shall pay to each of the plaintiffs 295,OO, OOO, and 15% interest per annum from O.O. to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. Plaintiff AA Co., Ltd. (hereinafter referred to as “Plaintiff”) is a company operating O business, etc., and Plaintiff BB is the representative director of the Plaintiff company.

B. The purchase tax invoice received by the Plaintiff Company from around October 2013 to November 2013, 2013 (hereinafter referred to as the “instant disposition agency”) is a tax invoice that is different from the fact that the purchase tax invoice received by the Plaintiff Company from DDA 2010 to 1st, 2011 was issued without real transactions. ② Purchase tax invoice received by the Plaintiff Company from FFG 20G 201 to 2012 from EFG 201 to EFG H, and thus, the actual business owner of EG 50O, 50O, 205O, 2050, 2050, 205O, 2050, 2050, 2050, 2050, 2050, 20500, 2050, 2050, 2050, 2050, 205

C. In addition, the instant disposition agency’s tax evasion and taxes against the Plaintiffs onO or around October 2013.

Pursuant to Article 15(1) of the Procedure for the Punishment of Tax Evaders Act due to the violation of the duty to receive a written notice, etc., notice was given that each of 363,OO, andOOO members should pay the amount equivalent to the fine (hereinafter referred to as the "instant notice disposition"), and the Plaintiffs paid the amount equivalent to the fine according to the instant notice disposition until O.O., 2013.

D. On October 2014, the Plaintiffs filed an appeal with the Tax Tribunal on the disposition of imposition, such as corporate tax, etc. of the instant disposition agency, notification of change in the amount of income, and the instant disposition of notification, and the Tax Tribunal rendered a decision on October 2015, O.O. (Omission) as follows.

E. According to the above decision, the instant disposition agency conducted a reinvestigation on the purchase tax invoice issued by the Plaintiff Company from GaE, and determined the tax base by deducting all the input tax amount of the purchase tax invoice issued by the Plaintiff from GaG and GaE. In the end, the Plaintiff rendered a decision to reduce the amount of KRW 98,OO, OOO(=corporate tax 7, OO, OO, OO + value added tax 91,OO,OO, and OO) remaining 486,OO, and OOO (=corporate tax 48,O, OO + value added tax + 438,OO, and OOO) from the amount of the corporate tax originally notified to the Plaintiff Company.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 3 (including branch numbers for those with additional numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's assertion

Since the disposition of corporate tax and value-added tax imposed on the Plaintiff Company was reduced by the decision of the Tax Tribunal and the pertinent disposition agency, the amount equivalent to the fine imposed on the Plaintiffs based on the existing additional tax amount out of the amount equivalent to the fine imposed on the Plaintiffs by the instant disposition is unfairly collected by the Defendant without any act, such as evading the Plaintiffs’ tax. Accordingly, the Defendant must return the amount equivalent

B. Determination

1) According to the above facts, the instant disposition authority issued the instant disposition with a suspicion that there exists an offense, such as tax evasion and receipt of tax invoice processing, against the Plaintiffs, but partially revoked the disposition imposing value-added tax and corporate tax on the ground that there is no actual transaction tax invoice and no other tax invoice receipt act different from the fact. However, the mere fact that the relevant tax amount (corporate tax and value-added tax) was revoked by the disposition authority on the ground that there was no offense such as tax evasion and receipt of tax invoice, etc. which caused the disposition, is insufficient to recognize that the defect in the instant disposition disposition is serious and clear, and thus, it is void.

2) However, pursuant to Article 15(1) of the Procedure for the Punishment of Tax Evaders Act, a commissioner of a regional tax office or director

When any person who has obtained positive evidence of a tax offense, he/she shall specify the reasons and notify him/her of the payment of the amount equivalent to the fine, goods equivalent to the confiscation or forfeiture, or an amount equivalent to the additional collection charge. According to Article 13 of the Enforcement Decree of the Procedure for the Punishment of Tax Offenses Act, a tax official shall prepare and serve a document in accordance with the Criminal Procedure Act.

This is a system in which an administrative agency notifies a person in violation of laws and regulations of monetary sanctions in lieu of an excessive punishment system imposed upon the person in violation of the punishment system for punishment for imprisonment or property punishment, and the administrative agency is exempted from prosecution (see, e.g., Constitutional Court Order 96Hun-Ba4, May 28, 1998). In the form of administrative sanctions or substance by a tax administrative agency, it notifies the offender subject to fines, minor fines, and confiscation of appropriate monetary sanctions. When the offender complies with the notified contents, it shall not be implemented as a regular punishment procedure, and if the offender complies with the notified contents, it shall not be implemented as a regular punishment procedure, and it has the nature of sanctions in substance in that the offender is not subject to investigation or punishment again for the same case, and therefore, it is necessary to specify the summary of the facts of the offense, applicable provisions of the punishment, amount of penalties, etc. in accordance with Articles 254 and 323 of the Criminal Procedure

However, according to the statement in Gap evidence No. 1, the notice of this case is merely written as follows: "tax evasion, etc.", "violation of the duty to issue tax invoices, etc.", and it is acknowledged that there is no indication as to the facts, such as the date and method of the crime to the extent that it can specify the facts, and the amount of tax evaded. The notice of this case is null and void due to a serious and obvious defect in violation of the procedure prescribed by the Enforcement Decree of the Procedure for the Punishment of Tax Evaders Act. Therefore, the defendant gains profit from the above amount of fine without any legal ground and thereby causes damage to the plaintiffs. Thus, the defendant is obligated to return the amount equivalent to the fine unjust enrichment to the plaintiffs.

3) Meanwhile, since the plaintiffs seek the return of 295,OO, andOOO of each amount equivalent to the above fine, the defendant is obligated to pay damages for delay calculated at the rate of 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from O.O.O. to the day of complete payment, which is the day following the delivery date of a copy of the complaint in this case, to the day of complete payment.

3. Conclusion

Therefore, since the plaintiffs' claims are well-grounded, it is decided as per Disposition by admitting all of them.