Where a refund of a revaluation tax paid due to the stock listing deadline is made, the date the additional refund is commenced;

If the State does not have any legal ground for holding the amount of tax, additional dues equivalent to the interest of the national tax refund cannot be deemed to occur.

Article 51 (Appropriation and Refund of National Tax Refund)

Article 52 (Additional Payment of National Taxes)

1. The Defendant’s disposition of imposing additional dues of KRW 905,001,220 against the Plaintiff on June 15, 2006, in excess of KRW 896,954,180, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 90% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

The Defendant’s disposition of imposing additional dues of KRW 905,001,220 against the Plaintiff on June 15, 2006 is revoked.

1. Details of the imposition;

A. The plaintiff was established on November 27, 1976 and operated the manufacture, sale, etc. of magnetic tapes, and conducted a revaluation of assets on the premise that shares are listed pursuant to Article 56-2 of the Regulation of Tax Reduction and Exemption Act (amended by Act No. 4285 of Dec. 31, 1990; hereinafter the same shall apply) on October 1, 1990. The plaintiff did not report revaluation of assets on the revaluation rate of KRW 24,563,617,398 (hereinafter referred to as "the revaluation rate in this case") as revaluation tax on December 382, 1990, 614, 240, 354, 294, 290, 736,908,520 (hereinafter referred to as "the revaluation rate in this case") and did not report and pay revaluation tax under Article 56-15 (1) of the Corporate Tax Act (hereinafter referred to as "the revaluation rate in this case").

B. However, as seen in the attached Form, the Plaintiff did not list stocks by December 31, 2003, notwithstanding the fact that the listing period of stocks has been finally extended by December 31, 2003 as the Act on the Regulation of Tax Reduction and Exemption and the Enforcement Decree thereof prescribing special cases for revaluation at the time of disclosure and the related Acts and subordinate statutes were amended several times, as seen in the attached Form.

C. On January 16, 2004, the defendant did not regard revaluation already conducted due to stock listing pursuant to Article 23(1) of the Addenda of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 17458, Dec. 31, 2001; hereinafter the same shall apply) and Article 138 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17458, Dec. 31, 2001; hereinafter the same shall apply) as revaluation under the Assets Revaluation Act as the result of ex officio revocation of the disposition imposing revaluation tax of this case, the national tax refund corresponding to the revaluated tax of this case paid by the plaintiff and additional refund calculated from the day following the date of payment of revaluation tax of this case, while making a refund decision on the revaluation difference of this case as a voluntary evaluation marginal profit under the Corporate Tax Act, and revised the corporate tax for the following business year by including the revaluation difference of this case in the gross income of the plaintiff in the following business year under the Corporate Tax Act (including a notice of additional Tax).

D. On March 11, 2004, the Plaintiff filed with the National Tax Tribunal a Gu tax trial seeking revocation of the Defendant’s disposition of correction of corporate tax and defense tax, which was January 16, 2004, and the National Tax Tribunal decided to revoke the portion of the instant penalty tax on March 24, 2005.

E. On March 28, 2005, the Plaintiff filed an application for refund of national tax equivalent to the instant revaluated tax amount with the Defendant and refund of additional dues calculated from the following day after the date of payment. On May 6, 2005 and May 20, 2005, the Defendant paid KRW 937,528,365 to the Plaintiff.

F. However, the Ministry of Finance and Economy, on March 22, 2006, expressed its view that the amount of additional dues corresponding to the period from the date of listing following the date of the date of listing the assets revaluation tax to March 31, 2004 should be fully recovered. Accordingly, on June 15, 2006, the defendant issued a disposition of imposition of additional dues corresponding to the period from the date following the date of listing the stocks to December 31, 2004 (hereinafter “instant disposition of imposition”) to collect additional dues corresponding to the period from March 31, 2004, which falls under the period from the date after the date of filing the corporate tax return to December 31, 2003, which falls under the period from the date after the date of listing the stocks to December 31, 2004 (hereinafter “additional dues”).

[Ground of Recognition] Facts without dispute, Gap's evidence 1, 2, Gap's evidence 3 through 5, Gap's evidence 1, 2, Gap's evidence 6 through 7, Gap's evidence 1 through 6, Gap's evidence 10, Eul's evidence 10, Eul's evidence 1 through 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) Plaintiff

(A) Article 52 Subparag. 1 of the Framework Act on National Taxes does not apply only to rectification or revocation due to an illegal cause at the time of payment, regardless of whether there exists an illegal cause at the time of payment or whether it is a correction or revocation due to a later cause. This case’s revocation ex officio of the disposition imposing the revaluation tax of this case under the following reasons for later revision, which is a stock listing that occurred after the payment of the revaluation tax. As such, the initial date of calculation of additional dues falls under “when a national tax refund is made due to correction or revocation of a return or imposition that serves as the basis of the payment after the payment,” and the payment date should be the following day as it falls under “when a national tax refund is made due to correction or revocation of a return or imposition that served as the basis of the payment after the payment,” and thus, Article 5

(B) It is unreasonable to set the starting date of additional dues on the ground that the assets revaluation tax and additional taxes are completely different from the legal nature and the grounds for imposition of corporate tax, and thus the corporate tax was not collected.

(C) Therefore, the Defendant’s disposition of this case, which was otherwise reported, is unlawful even though the initial date of the instant refund should be the day following the payment date of revaluation tax of this case.

(2) Defendant

(A) The fundamental cause of the Defendant’s revocation ex officio of the disposition of revaluation tax of this case is due to the amendment of relevant Acts and subordinate statutes, such as the Act on the Regulation of Tax Reduction and Exemption and the Act on the Regulation of Tax Reduction and Exemption and the Act on the Regulation of Tax Reduction and Exemption, which provide for the special cases concerning the assessment of assets after lawful payment. Since the revaluation tax of assets ceases to be the tax basis due to the amendment of relevant Acts and subordinate statutes, the above refund of national tax falls under subparagraph 3 or 5 of Article 52 of the Framework Act on National Taxes and the initial date of calculating the additional dues of this case should be January 1, 2004, which is the date following the date of listing the stocks (the Defendant did not refund the revaluated tax to the Plaintiff

(B) In the instant case, the instant disposition of revaluation tax was lawful without any defects, and the Defendant cannot pay a refund in addition to the additional dues calculated from the day following the date of payment of revaluation tax in the instant case, because the payment of national tax refund was made because the Defendant had a legal ground for holding the revaluated tax paid until the date when stocks were not listed.

(C) Since the corporate tax, etc. and the revaluation tax are closely related to the refund of the revaluated tax paid while imposing the corporate tax reduced or exempted on the same asset revaluation margin, if the additional tax, etc. cannot be collected by the deadline for filing the corporate tax base and the tax amount on December 31, 2003, which belongs to the same asset revaluation margin, it is natural that the additional refund amount equivalent to the period for which the corporate tax and other additional tax are not collected is not added to the refund of the revaluation tax already paid for the same asset

(D) Therefore, the Defendant’s disposition of this case rendered to refund the refund of the refund of this case erroneously refunded on the date following the date following the date of payment of revaluation tax of this case is lawful.

(b) Related statutes;

Article 51 (Appropriation and Refund of National Tax Refund)

Article 52 (Additional Payment of National Taxes)

Article 30 (Determination of Additional Payment on Refund of National Taxes)

Article 56-2 (Special Cases of Re-evaluation in Case of Disclosure of Company)

Article 56-2 Deleted.

Article 138 (Special Cases concerning Asset Revaluation for Public Disclosure)

Article 4 (Evaluation Date of Assets Revaluation Act)

Article 8 (Revaluation of Revaluation)

Article 9 (Persons Liable for Tax Payment)

Article 12 (Tax Base of Assets Revaluation Act)

Article 18 (Effect of Determination of Revaluation Value, etc. of Assets Revaluation Act)

Article 38 (Restriction on Revaluation of Assets Revaluation Act)

Article 15 (Non-Inclusion in Gross Income)

C. Determination

(1) As to the holding of the revaluated tax amount by December 31, 2003

(A) The national tax refund constitutes a “illegal profit” that is received or held by the State without any legal cause despite the existence of a tax obligation from the beginning or the extinction thereof. As such, an additional refund calculated by multiplying the refund amount by the prescribed rate under Article 52 of the Framework Act on National Taxes is an interest on unjust enrichment. Thus, an additional refund on refund is not independent of the refund amount, but has the nature of legal interest on the refund claim and obligation (see, e.g., Supreme Court Decision 2001Da60767, Jan. 11, 2002).

Meanwhile, according to the provisions of Articles 51(1) and 52 of the Framework Act on National Taxes and Article 30 of the Enforcement Decree of the same Act, where a taxpayer has paid national taxes, additional dues, or expenses for disposition on default, the head of a tax office shall immediately determine such amount as a national tax refund, if any, out of the amount paid by the taxpayer as a national tax, additional dues, or expenses for disposition on default, and at the same time the refund of national taxes is determined according to the legal regular calculation day and interest rate, and where the refund of national taxes is appropriated or refunded at the time of appropriation or refund of the national tax refund. The above amount of erroneous payment refers to the amount of tax paid or collected, regardless of the absence of a return (in the case of a tax return) or a disposition on imposition (in the case of an assessment on imposition), or ex officio invalidation. The amount of excess payment means the amount of tax reduced wholly or partially by the return of the national tax refund at the same time as the former becomes final and conclusive by the Supreme Court’s en banc Decision 80 years, and thus, the amount of excess payment or refund becomes final and conclusive by law.

(B) In this case, ① The imposition of revaluation tax under the Assets Revaluation Act is based on the provisions of the main sentence of Article 56-2(1) of the Act on the Regulation of Tax Reduction and Exemption, but the Plaintiff had not listed stocks until December 31, 2003, which is the grace period pursuant to the amendment of the Act on the Regulation of Tax Reduction and Exemption, etc. However, the meaning of “reassessment already made pursuant to the Assets Revaluation Act” is not considered as revaluation under the Assets Revaluation Act. It does not mean that the corporation, which is the subject of revaluation, should not be deemed as being in itself subject of revaluation, nor that the effect of accounting and tax return should be retroactively returned to the book value (see, e.g., Supreme Court Decision 93Nu1812, Mar. 8, 1994). Therefore, it cannot be deemed that the Defendant’s ex officio revocation of the imposition of revaluation tax under the provisions of Article 20 of the Framework Act on National Taxes or ex officio cancellation of the payment of the same (see, e.g., Supreme Court Decision 2001).

(C) Ultimately, the amount of revaluation tax of this case, which the defendant held until December 31, 2003, does not constitute "amount overpaid or erroneously paid or overpaid," but cannot be deemed as "tax refund amount to be refunded under the tax law until December 31, 2003." As to the holding of revaluation tax of this case by December 31, 2003, the legal principles on the refund of national taxes and the refund of national taxes under Articles 51 and 52 of the Framework Act on National Taxes cannot be applied (where unjust enrichment is not established, additional refund, which is interest on unjust enrichment, cannot be deemed to accrue). Accordingly, the plaintiff's assertion under the premise that Article 51 and Article 52 subparagraph 1 of the Framework Act on National Taxes is applied to the period until December 31, 2003, is without merit.

(D) In addition, the fact that the Defendant failed to calculate the initial date from the day after the date of payment is due to the fact that the unjust enrichment was not established until December 31, 2003 from the day following the date of payment, and the corporate tax was not collected. Therefore, the additional dues on refund of revaluation tax are completely different from the corporate tax and the legal nature and grounds for imposition. However, the Plaintiff’s assertion on this premise is without merit, as long as the initial date of calculation of additional dues is not calculated from the day after the date of payment due to the Defendant’s failure to collect corporate tax.

(2) As to the holding of the revaluated tax amount of this case since January 1, 2004

(A) On the other hand, since January 1, 2004, the amount of revaluation tax of this case held by the defendant was lawfully paid, but there was no justifiable reason to hold by the State thereafter, and thus, it constitutes unjust enrichment held by the State without any legal ground despite the extinction of the tax liability, and thus, additional dues for unjust enrichment should occur as legal interest holders for unjust enrichment should be deemed to fall under Article 56-2 of the Regulation of Tax Reduction and Exemption Act, Article 23 of the Addenda of the Regulation of Tax Reduction and Exemption Act (amended by Act No. 4285 of December 31, 190), Article 138 of the Enforcement Decree of the same Act.

(B) Although the Defendant asserts that Article 52 subparag. 5 of the Framework Act on National Taxes should apply to the initial date of calculation, the Defendant’s refund of the revaluated tax of this case does not arise from the amendment of the relevant Acts and subordinate statutes, since the Plaintiff’s refund of the revaluated tax of this case was due to the fact that the Plaintiff failed to list stocks by the deadline stipulated in the relevant Acts and subordinate statutes, it cannot be deemed that the initial date of calculation of the additional refund of national taxes on “in the case of national

However, the provision on the refund of national taxes under Article 52 of the Framework Act on National Taxes does not only provide for the procedures for refund of national taxes and additional dues for which the tax payer's right to refund has already become final and conclusive, but it is not finalized only by the decision of the tax authorities on the refund of national taxes according to the above provision, as the internal procedures for the refund of national taxes and additional dues (the Supreme Court Decision 88Nu6436 delivered on June 15, 1989). In this case, where additional dues are ultimately incurred due to the amendment of Acts and subordinate statutes extending the time limit for stock listing as in this case, Article 52 subparagraph 5 of the Framework Act on National Taxes shall apply mutatis mutandis, and it is reasonable to apply Article 52 subparagraph 5 of the same Act to the starting date of the refund of national taxes

(3) Sub-determination

Based on the above legal principles and factual relations, the amount of the additional dues of this case which the defendant has a legitimate authority to hold is KRW 896,954,180 ( KRW 905,001,220-8,047,040) as stated in [Attachment 1]. Therefore, the part of the disposition of this case which exceeds the above amount is lawful and illegal.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are justified, and it is decided as per Disposition by the assent of all participating Justices.