Claim for Return of Fraudulent Gains on Withholding Tax Amount

If a withholding agent collects and pays an amount of tax on income not subject to withholding from a source taxpayer in excess of the amount of tax to be collected, paid, or to be collected, the claim for the repayment thereof shall be vested in the withholding agent, not the original

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 32,00,000 won with an amount calculated by the rate of 20% per annum from February 14, 2003 to the date of full payment.

1. Basic facts

A. On May 31, 2001, the Plaintiff reported to the head of ○○ Tax Office the total income tax for the year 200 to KRW 52,071,855, and the final tax amount to KRW 10,021,556, and paid the said tax amount.

B. On February 14, 2003, the head of ○○○ Tax Office notified the Plaintiff’s change of income amount of KRW 160,000,000,000 as other income attributed to the Plaintiff’s year of 200, and the ○○○○ Tax Office withheld the Plaintiff’s global income tax amount of KRW 32,00,000 (hereinafter “instant global income tax”) from the Plaintiff on April 14, 2003 and paid it to the head of ○○ Tax Office.

C. Meanwhile, the head of the ○○ Tax Office imposed and notified the global income tax base for the global income tax for the year 2002 on July 1, 2003 upon the notice of the change in the amount of income from the head of the ○○ Tax Office (i.e., KRW 52,071,075 won + KRW 160,000,000) and the total amount determined as KRW 86,526,092 (including the additional tax), and imposed and notified the increased tax amount of KRW 42,071,556 (i.e., KRW 10,021,556 + KRW 32,00,000). The Plaintiff paid it.

D. Thereafter, on October 31, 2003, the head of ○○ Tax Office confirmed that the Plaintiff was a non-business amount of KRW 6,610,950 for the year 200, and subsequently issued a new disposition imposing and notifying the Plaintiff of the tax base of KRW 218,682,80 for the non-business amount of KRW 218,682,80 (= KRW 212,071,855 + KRW 6,610,950 + KRW 89,718,250 (including additional tax) and the total determined amount of KRW 86,526,092 (= + KRW 42,021,556 + KRW 44,504,536). The Plaintiff paid it.

E. However, the plaintiff filed a lawsuit against the head of ○○ District Court 000Guhap0000 and the revocation of disposition against the head of ○○ Tax Office in favor of the plaintiff that "the head of ○○ Tax Office revoke the disposition of global income tax imposed on the plaintiff on July 1, 2003." The judgment became final and conclusive around January 18, 2006.

F. According to the above judgment, the head of ○○ Tax Office, on February 3, 2006, corrected the tax base of global income tax for 2000 to KRW 58,682,805 (= KRW 52,071,855 + KRW 6,610,950 + KRW 12,150,942 (including additional tax) and refunded the Plaintiff the remaining amount of KRW 45,567,308 (= KRW 89,718,250 – KRW 12,150,942 – KRW 32,00,000).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 5, purport of whole pleadings

2. Determination on this safety defense

The defendant asserted that the lawsuit of this case filed against the defendant, not ○○○○, who illegally withheld by the plaintiff, is inappropriate as a lawsuit against the non-party-qualified person. Thus, the defendant's main defense of this case is without merit. In the performance lawsuit, the person alleged by the plaintiff as the performance obligor has the standing to be the defendant.

3. Judgment on the plaintiff's assertion

A. Main argument and judgment

In light of the above legal principles, the defendant should pay 7,567,308 won (=89,718,250 won - 12,150,942), which is the total amount of tax paid by the plaintiff by the disposition of imposition on July 1, 2003, and the defendant should pay 32,000,000 won of the global income tax of this case withheld and paid by the plaintiff. Thus, the defendant asserts that ○○○ is liable to pay the plaintiff the global income tax of this case and its delay damages.

On the other hand, if a withholding agent, in the withholding tax system, collects and pays the tax amount on income not subject to withholding from a source taxpayer in excess of the amount of tax to be collected, paid, or to be collected, the right to claim the refund therefrom shall be vested in the withholding agent, not the source taxpayer, and the source taxpayer is only entitled to claim the amount equivalent to the right to claim the refund against the withholding agent as unjust enrichment (see, e.g., Supreme Court Decision 000Da000, Mar. 14, 2003).

Therefore, aside from seeking a return of unjust enrichment equivalent to the amount of refund against the State by ○○○, a withholding agent, can not seek a return of unjust enrichment against the State directly by the Plaintiff, a source taxpayer. Therefore, the Plaintiff’s primary argument is without merit.

(B) In addition, the Plaintiff asserts that the status of the original taxpayer is changed to the status of the taxpayer after the additional taxation as seen in this case, and that the Plaintiff may seek a return of unjust enrichment against the State as the status of the taxpayer who is not the original taxpayer, but the Plaintiff may seek a return of unjust enrichment with respect to the amount of tax withheld at source. However, there is no ground to view that the right to claim a refund of unjust enrichment with respect to the amount of tax withheld at source

B. Preliminary assertion and judgment

On the other hand, the Plaintiff, a withholding agent, as the Plaintiff’s conjunctive, was the Plaintiff.

Inasmuch as ○○ may file a claim for return of unjust enrichment equivalent to the claim for repayment of ○○○○○○, the Defendant asserts that ○○○○○○ Company exercise the right to claim restitution of unjust enrichment on behalf of the Defendant to preserve the above claim.

In order to exercise creditor's subrogation right, it should be necessary for the creditor to preserve the claim. If the claim is a monetary claim, if the debtor needs to neglect the reduction of the general property due to his insolvent, the creditor should assert and prove such requirements (Supreme Court Decision 00Da000 Decided July 13, 1976, etc.).

Therefore, the plaintiff, who is claiming a vicarious exercise of monetary claim, does not assert or prove any assertion or proof as to the insolvency of ○○○○○○, a debtor, and therefore, the above preliminary assertion is without merit without examining the remainder of the issue.

4. 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.

[Supreme Court Decision 2008Da34552 (Law No. 87.24)]

1. The appeal is dismissed.

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

We examine the grounds of appeal in comparison with the records and the judgment of the court below. Since it is clear that the grounds of appeal by the appellant fall under Article 4 of the Act on Special Cases Concerning the Procedure for Appeal, it is dismissed under Article 5 of the same Act. It is so decided as per Disposition by the assent