National Agricultural Cooperative Federation (Bae, Kim & Lee LLC, Attorneys Park Jong-ho, Counsel for defendant-appellant)

Korea

June 27, 2018

Seoul Central District Court Decision 2017Da5152851 Decided December 14, 2017

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 140,114,121 won and 74,649,360 won among them, 65,464,761 won per annum from March 29, 2016 to the delivery date of each complaint of this case, and 6% per annum from March 27, 2016 to the delivery date of each complaint of this case and 15% per annum from the next day to the day of full payment.

1. Quotation of the first instance judgment

The reasoning of the judgment of this court is as follows, except that the part of the judgment of the court of first instance No. 3, No. 19, No. 4, and No. 16 is used as follows. Thus, it is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

A. Relevant statutes

Article 52 (Additional Payment of National Tax) (1) When the head of a tax office appropriates or pays a national tax refund pursuant to Article 51, he/she shall add the amount calculated according to the interest rate prescribed by Presidential Decree in consideration of the period from the initial date of calculating the additional payment of national taxes prescribed by Presidential Decree to the date when the refund is appropriated or determined to pay the national tax refund, and the deposit interest rate of financial companies, etc., as prescribed by Presidential Decree.

B. The initial date of national tax refund and additional charges

In full view of the following circumstances, as in the instant case, the payment of comprehensive real estate holding tax due to the same taxable year and the same object of taxation, the payment of the first imposition and payment by self-return, and the second increase in the amount of comprehensive real estate holding tax due to the order of payment, shall be deemed to have commenced unjust enrichment on the basis of the actual payment date in excess of the actual payment. As such, it is reasonable to apply the case of payment in installments at least twice under the proviso of Article 43(1)1 of the Enforcement Decree of the Framework Act on National Taxes.

① A tax refund constitutes unjust enrichment received or held by the State without any legal cause even though the tax liability existed from the beginning or the tax liability has ceased to exist, and additional dues on refund has the nature of legal interest as a statutory interest for such unjust enrichment. As such, deeming that unjust enrichment was commenced at the time of the actual excess of the tax payment accords with the nature of additional charges on refund.

(2) A disposition to increase or decrease the tax base and amount of tax shall not be a disposition to determine additionally only the portions omitted without additional determination of the tax base and amount determined by the original taxpayer or the tax authority as they are, but also a disposition to re-determine a single tax base and amount of tax including the tax base and amount determined in the initial return or determination, and where a disposition to increase or decrease is taken, the initial return or determination would lose its existence value independently by absorbing the disposition to increase or decrease (Supreme Court Decision 2006Du17390 Decided May 14,

③ The proviso of Article 43(1)1 of the Enforcement Decree of the Framework Act on National Taxes only stipulates that “Where national taxes have been paid in two or more installments,” the said payment in installments is limited to cases meeting the requirements for payment in installments under individual tax-related Acts, as asserted by the Plaintiff, there is no statutory provision or ground to interpret the said payment in installments.

2. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Gi-uri (Presiding Judge) (Presiding Judge)