Seoul Central District Court 2007Kahap85985 (Law No. 18, 2008)

Whether it is possible to claim for return of inheritance tax erroneously paid or overpaid due to the decision of the National Tax Tribunal

Since the appraised value of inherited shares determined by the National Tax Tribunal is valid only for the increased or corrected disposition, it cannot be denied the validity of the original administrative disposition, and therefore, it cannot be justified that the collection of inheritance tax due to the initial disposition cannot constitute unjust enrichment.

The contents of the decision shall be the same as attached.

1. The plaintiffs' appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiffs 225,030,786 won and 20% interest per annum from the next day after the delivery of a copy of the complaint of this case.

1. Basic facts

The following facts may be acknowledged, either in dispute between the parties, or in combination with the whole purport of the pleadings, either the evidence of Nos. 1, 2, 1-1 through 5, Eul evidence of No. 2 and 3, Eul evidence of No. 4, Eul evidence of No. 5-1 through No. 7:

A. The plaintiffs were heirs of deceased ○○○○○○○○○ (hereinafter referred to as the "Inheritance Tax and Gift Tax Act") who died on November 10, 2003, and on May 7, 2004, under Article 67 of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Inheritance Tax and Gift Tax Act") the tax base of inheritance was KRW 1,206,778,743 (the total value of inherited property 4,562,935,520 - the total value of non-taxable value 1,951,748,011 - the total amount of non-taxable value - KRW 1,357,437,911 - KRW 32,711,497, and KRW 32,271,497, and KRW 400,000 (the above ○○○○○○○ (hereinafter referred to as the "Inheritance Income Tax and Gift Tax Act") which were declared to be paid to the plaintiffs.

B. On July 5, 2004, the director of the final tax office decided the tax base and the amount of tax as reported by the plaintiffs, and on the same day, he/she permitted the plaintiffs to pay the remaining amount of 216,00,000 won, excluding the amount of 74,440,348 won from the above determined tax amount (Article 22 of the Framework Act on National Taxes and Article 10-2 subparagraph 3 of the Enforcement Decree of the same Act; hereinafter referred to as "the initial disposition in this case") and thereafter, upon the notice of payment following the permission of annual payment by the director of the final tax office to pay the above amount of tax in installments over six months from the end of the same year (Article 22 of the Framework Act on National Taxes and Article 10-2 subparagraph 3 of the Enforcement Decree of the same Act; hereinafter referred to as "the initial disposition in this case").

C. Meanwhile, when it was difficult for the Plaintiffs to operate the ○○○ Construction due to the death of the deceased ○○○○○○ upon the death of the deceased ○○○○○, the Plaintiffs transferred the instant shares in the aggregate on August 16, 2004, which was within six months from the filing deadline of inheritance tax base ( May 10, 2004) to the regular ○○○ and Kim○○, a total of KRW 540,000 per share x 54,000 per share ( KRW 10,000 per share x 54,000). However, the inheritance tax correction claim under Article 79 of the Inheritance Tax and Gift Tax Act and

D. However, according to the revision of corporate tax on ○○ Construction, the head of the final tax office assessed the value of the instant shares as KRW 2,277,720,00 ($ 42,180 per share x 54,000 per share) and calculated as KRW 505,598,562, the tax base of the instant inheritance tax was calculated as KRW 1,663,96,562, and calculated as KRW 505,59,562, the amount of the assessed tax was calculated as KRW 519,363,757, after adding the amount of the assessed tax deducted, the amount of the assessed tax was reported, and the amount of the corrected tax was determined as KRW 290,40,348, the amount of the assessed tax was deducted as KRW 228,923,409, and the amount of the assessed tax was determined as KRW 201,716.7.16.

E. On October 12, 2006, the plaintiffs evaluated the appraised value of the shares of this case to the Director of the National Tax Tribunal on August 16, 2004 as 540,000,000 won and re-determination of the inheritance tax of this case by evaluating the appraised value of the shares of this case to YOO, etc. on August 16, 2004, or upon receiving a request for a National Tax Tribunal to re-determination of the inheritance tax of this case, the amount obtained by deducting the sum of the values of shares of this case, which are verified and assessed pursuant to Article 79(1)2 of the Inheritance Tax and Gift Tax Act and Article 81 subparag. 2 of the Enforcement Decree of the same Act, from the inherited property value, as the total value of inherited property, shall be re-determination of the inheritance tax of this case.

F. On July 5, 2007, the Director of the National Tax Tribunal assessed the total value of the shares in this case as KRW 540,000,000,000. However, Article 22-2(1) of the Framework Act on National Taxes stipulates that even if the increase is corrected, it shall not affect the original determined tax amount, and in filing a request for a dissatisfaction, he/she made a decision to revoke the disposition of imposition of KRW 228,923,40 on the ground that only the tax amount exceeding the original determined tax amount is subject to dispute.

G. Accordingly, on July 19, 2007, the head of the final tax office, after deducting the returned tax amount from the calculated tax amount of KRW 335,046,80 calculated by adding the returned tax amount to KRW 308,445,160, the total determined tax amount of KRW 519,363,757, the amount of the initial determined to reduce the above determined tax amount of KRW 210,918,597, excluding KRW 308,445,160, the amount of the final determined tax amount of KRW 308,445,757 (in the case of the revised tax reduction, this is merely a separate independent tax disposition, but merely a partial revocation or alteration of the initial tax disposition, and thus, the amount of the revised tax amount of KRW 335,446,80, the amount of the original determined to be reduced to KRW 3084,160, the same shall apply 2084.

2. Related statutes;

Article 22 (Determination of Liability for Tax Payment)

Article 22-2 (Effect of Revision, etc.)

Article 10-2 (Determination of Tax Liability)

Article 67 (Tax Base Return of Inheritance Tax)

Article 76 (Determination and Revision of Inheritance Tax and Gift Tax Act)

3. The plaintiffs' assertion

Since the National Tax Tribunal recognized the market price of the instant shares as KRW 540,000,00,000, the inheritance tax amount to be paid by the Plaintiffs would be KRW 65,409,562, and the inheritance tax amount to be paid by the Plaintiffs would be KRW 290,440,348, and thus, the Defendant is obliged to return the remainder of KRW 225,030,786, in excess of the aforementioned justifiable tax amount paid by the Plaintiffs, as unjust enrichment.

4. Determination

A. The Plaintiffs recognized the market price of the shares of this case as 540,000,000 won in the above national tax trial rather than dispute over the legitimacy of the initial disposition or increase disposition of this case. The purport seems to be that, as a matter of course, the taxes paid by the Plaintiffs, which are higher than the justifiable amount calculated based on this, should be returned to the Defendant as they were unjustly unjust enrichment. However, since the taxes paid by the Plaintiffs were based on the initial disposition of this case or the increase disposition of this case, it cannot be denied the validity of the administrative disposition as a preliminary issue in civil procedure, and thus, it cannot be said that the collection of inheritance tax has not been revoked by administrative appeal or administrative litigation.

B. In addition, in order to file a claim for the return of inheritance tax erroneously paid or overpaid, there is a defect corresponding to the invalidity of the disposition of inheritance tax. The disposition of national tax is an administrative disposition, and even if there is a defect in the administrative disposition, in order to make the defective administrative disposition null and void as a matter of course, it must be objectively obvious that the defect violates the important part of the laws and regulations, and it is objectively obvious (see Supreme Court Decision 2000Da8649, Jun. 9, 200). The reasons recognized earlier or the reasons for the plaintiffs' assertion alone are in violation of the essential part of the laws and regulations in the initial disposition or increase disposition of this case, and it is difficult to view that there is a defect corresponding to the invalidation of the disposition of this case objectively apparent and obvious, and there

C. Therefore, without any need to further examine the remaining issues, the plaintiffs' claim of this case is without merit (the plaintiffs filed a motion to change the lawsuit of this case brought in a civil suit in the trial to an appeal litigation seeking revocation of the taxation disposition prior to the trial, and filed an application for correction of the defendant, but there is no ground to permit it in the appellate trial even if the relevant provisions of the Civil Procedure Act and the Administrative Litigation Act are

5. Conclusion

Therefore, the plaintiffs' claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance that shares the same conclusion is justifiable, so the plaintiffs' appeal of this case is dismissed as it is without merit, and it is so decided as per Disposition.