Seoul High Court-2016-Na2074232 (Law No. 26, 2017)

Whether the initial date of the additional payment on the refund of national taxes prescribed in Article 52 of the former Framework Act on National Taxes shall be the same.

If the amount of tax paid according to the disposition imposing inheritance is corrected according to the subsequent request for correction, the initial date of the additional refund on national taxes shall be the day following the date of request for correction pursuant to Article 43-3(1)5 of the Enforcement Decree of the Framework Act on National Taxes.

Article 52 Additional Payment on Refund of National Taxes, Additional Payment on National Taxes Article 43-3

2017Da238660, national tax refund, etc.

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Korea

June 28, 2018

1. The appeal is dismissed.

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A. Article 52 of the former Framework Act on National Taxes (amended by Act No. 15220, Dec. 19, 2017; hereinafter referred to as the "Framework Act on National Taxes") delegates to the Presidential Decree the initial date of calculating the additional payment of national taxes. Article 43-3(1) of the Enforcement Decree of the Framework Act on National Taxes provides for the classification of the initial date of calculating the additional payment of national taxes based on the cause of national tax refund occurrence.

1) Article 43-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes, as well as cases of national tax refund arising from erroneous payment, and even in cases of national tax refund arising from rectification of a return or imposition that served as the basis of the payment after the payment, the day following the payment date of national tax shall be determined as the initial date of calculation of the national tax refund. However, in cases falling under Article 43-3(1)5

2) Article 43-3(1)5 of the Enforcement Decree of the Framework Act on National Taxes provides that, in principle, the next day of the filing date of a request for correction shall be determined as the initial date in calculating the additional payment of national taxes.

B. Meanwhile, a taxation disposition made on a person who does not have any factual basis, such as the legal relation, income, or act, which is generally subject to taxation, shall be deemed to be significant and obvious, but in a case where there are objective circumstances that make it possible to mislead him as to any legal relation or fact which is not subject to taxation, and where it is possible to accurately investigate the factual basis as to whether it is subject to taxation or not, it cannot be deemed to be apparent even if the defect is serious, and thus, it cannot be deemed to be an unlawful taxation disposition that misleads the fact of taxation (see, e.g., Supreme Court Decisions 200Da17339, Jun. 29, 2001; 2001Du7268, Sept. 4, 2002).

2. The reasoning of the lower judgment and the record reveal the following facts.

A. On January 10, 2009, the Plaintiff’s husband, died on January 10, 2009, and the Plaintiff succeeded to the property. At that time, there was a transfer registration of ownership in the name of the decedent with respect to the instant land.

B. On July 31, 2009, the Plaintiff filed a return on inheritance tax including the instant land in the inherited property. Aa chief of a tax office calculated a higher tax base of inheritance in 2010 and imposed an inheritance tax. On June 26, 2014, the head of a tax office imposed an inheritance tax amounting to KRW 1,817,758,390 on the Plaintiff on June 26, 2014.

C. On December 18, 2014, the Seoul Central District Court rendered a judgment ordering the Plaintiff to file for the registration of ownership transfer that was completed in the future of the decedent and the implementation of each procedure for the registration of ownership transfer that was completed in the future of the Plaintiff. The above judgment became final and conclusive on January 15, 2015. The reasoning of the judgment is that the registration of ownership transfer in the name of the decedent with respect to the instant land was made in accordance with the three-party registered title trust agreement, and thus, the registration of ownership transfer made in the future of the Plaintiff on the ground of inheritance is null and void.

D. On March 13, 2015, according to the above final judgment, the Plaintiff filed a claim for rectification of inheritance tax with the head of a tax office on March 13, 2015, to the effect that from “the amount of inheritance tax paid by the Plaintiff,” the Plaintiff excluded the land from inherited property and deducted the amount of inheritance tax paid.”

E. On May 18, 2015, the director of a tax office accepted the Plaintiff’s request for correction and made a decision to refund refund by adding the additional refund on the refund of national taxes to the above difference amount, and paid that amount to the Plaintiff on the 19th of the same month. In this case, the director of a tax office calculated and paid the additional refund of national taxes according to the period from March 14, 2015, counting from March 14, 20

3. We examine these facts in light of the legal principles as seen earlier.

A. In full view of the above facts, since the land of this case was registered under the name of the decedent at the time of commencing the inheritance, there were objective circumstances that could mislead the land of this case to be included in the inherited property, and whether the registration of ownership transfer under the name of the decedent was made under a three-party registered title trust agreement, and thus null and void, it is reasonable to deem that it could only be clarified only when the facts are accurately examined. Therefore, since the defect that the head of a AA tax office misleads the land of this case as inherited property cannot be deemed apparent apparent, the part equivalent to the above difference in the disposition of imposition of inheritance tax cannot be deemed null and void as a matter of course, the provisions concerning erroneous payment under Article 43-3 (1) 1

B. In addition, the head of a tax office has refunded the tax amount paid by the Plaintiff according to the disposition of inheritance tax imposition according to the Plaintiff’s later request for correction. In this case, the initial date of calculating the additional refund of national taxes should be the day immediately following the filing date of a request for correction pursuant to Article 43-3(1)5

C. The Plaintiff’s ground of appeal is that the lower court erred by applying Article 43-3(1)5 of the Enforcement Decree of the Framework Act on National Taxes even though it had been subject to Article 43-3(1)1 of the same Enforcement Decree. The allegation in the ground of appeal is a new assertion that only comes to the final appeal, and thus, does not constitute a legitimate ground of appeal. Furthermore, even if examining the allegation in the grounds of appeal, the lower court’s determination that calculated the additional payment on the refund of national taxes according to the period starting from the date following the date of filing the Plaintiff’s request for correction by applying Article 43-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes, not Article 43-3(1)

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.