Busan District Court 2012 Ghana36159 ( October 30, 2012)

Even if the taxation was revoked after the ex post facto unfair disposition, this lawsuit is without merit, premised on the public official’s intent.

Even if the taxation disposition by the tax office is considered to be ex post facto unfair disposition, it cannot be considered to constitute an illegal act only for such reason, and the Supreme Court also judged that the taxation disposition is not illegal, and the plaintiff's claim under the premise that the public official in charge is illegal on purpose or negligence is groundless.

2012Na40742 Damages

AA General Construction Corporation

Korea

Busan District Court Decision 2012 Ghana36159 Decided April 30, 2012

September 27, 2012

October 18, 2012

1. The plaintiff's appeal is dismissed.

2. The 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 00 won with the interest of 20% per annum from the day after the date of the judgment of this case to the day of full payment.

1. Basic facts

(a) A contract for construction works;

1) On September 23, 1994, the O-O district land rearrangement cooperative (hereinafter referred to as the “BB construction”) contracted the land rearrangement project for the land rearrangement project conducted by the Busan District District Association in the O-gun, the captain-gun, and the OOriwon, and the BB construction performed the said construction, and around 1996, the fixed rate was determined as 53.14% of the total construction work (hereinafter referred to as “BB construction portion”).

2) On January 28, 200, the Plaintiff received the remainder of the construction work (hereinafter referred to as “the remainder of the construction work”) from the instant partnership, excluding the completed portion of BB construction, among the land partitioning work, from the instant partnership, by determining the construction cost of KRW 000 (excluding value-added tax) and the construction period from February 14, 200 to October 14, 2000.

(b) Reporting and payment of corporate tax, 200 and value-added tax for the first term portion of 200.

1) The Plaintiff issued and issued each tax invoice of the supply price of March 31, 200, the supply price of 000 won as of June 30, 200, and the supply price of 000 won as of June 30, 200, and reported and paid the corporate tax for 2000 years and the value-added tax for the total supply price of 00 won and its value-added tax for the year 200, including each taxable income and output tax.

2) However, around August 2003, the director of the Seosan Tax Office under the Defendant-affiliated Tax Office issued a written confirmation that the remaining construction work of this case was ordered to the Plaintiff at KRW 000,000, and the construction work was to be paid to the remainder of the development recompense land, and subsequently corrected the Plaintiff’s corporate tax for the year 200 on the grounds that the total value of supply in the tax invoice issued by the Plaintiff was processed sales, etc.

(c) Notification of the rectification of corporate tax in 2003 and value-added tax for the first period of 2003.

1) Meanwhile, the Plaintiff arbitrarily disposed of land allotted by the instant association as the court 2005Gahap3260, which agreed to pay the remaining construction cost of the instant association to the Plaintiff. As such, the instant association filed a lawsuit against the instant association, claiming that the Plaintiff should compensate the Plaintiff for damages incurred therefrom, or that the instant association should pay the remaining amount after deducting the Plaintiff’s direct payment from the purchase price of land allotted by the development recompense for development outlay, from the purchase price of the instant remaining construction cost.

2) The head of the Dong branch office of the defendant, who became aware of the contents of the lawsuit, did not receive a tax invoice related to the remaining construction from the plaintiff during the 2000-year period after the plaintiff's death as the executive director of the partnership of this case, while conducting a tax investigation against the plaintiff, and the tax invoice received in the 2000-year period from the plaintiff was prepared with a confirmation that "the tax invoice is related to the completed portion of the BB construction during the construction of this case", and on October 12, 2007, the plaintiff reported and paid the completed portion of the BB construction, and the value-added tax and corporate tax related to the remaining construction of this case were not reported and paid. On January 7, 2008, the plaintiff decided that the time when the plaintiff supplied the service was 2003 and notified the plaintiff of the correction of the corporate tax in 203 and the value-added tax amount of 1 million won for the year 2003 (hereinafter referred to as the "taxation of this case").

D. Progress of administrative litigation with respect to each disposition of this case

1) On March 3, 2008, the Plaintiff, who was dissatisfied with the instant taxation disposition, filed a request for adjudication on the instant taxation disposition with the Director of the Tax Tribunal, and the Director of the Tax Tribunal dismissed the said request on May 20, 2008.

2) After that, the plaintiff filed a lawsuit against the head of the same tax office with Busan District Court 2008Guhap3037, but on December 11, 2008, the plaintiff was sentenced to the judgment against the plaintiff that the plaintiff's claim is dismissed on December 11, 2008, and the plaintiff appealed with Busan High Court 2009Nu195, but the judgment of dismissal was pronounced, and the plaintiff appealed with Supreme Court 2009Du11577, but on October 15, 2009, the above judgment became final and conclusive, and the pertinent taxation became final and conclusive through the above trial procedure.

E. Ex officio revocation of the instant taxation disposition

1) On May 10, 2010, the Plaintiff filed a civil petition with the Busan Regional Tax Office that requested the revocation of the instant taxation disposition with the Defendant’s Busan Regional Tax Office, and submitted additional data, such as payment resolution, deposit slip, alternative deposit slip, and ordinary deposit passbook in the Plaintiff’s name, which was concluded with the subcontractor’s Oconstruction Co., Ltd. (hereinafter “O Construction”) that did not submit in the process of the said administrative litigation.

2) After reviewing the documentary evidence submitted by the Plaintiff, the Busan Regional Tax Office determined that the Plaintiff’s assertion is reasonable, and determined that the instant taxation is likely to constitute double taxation, and that the binding force of the ruling is only recognized only for the decision of the acceptance, such as cancellation and correction, and that it is not recognized as a decision of rejection or decision of dismissal, and thus, the original disposition may be revoked or modified ex officio.

[Ground of Recognition] The facts without dispute, Gap evidence 1 to 3, Gap evidence 2 to 8, and Eul evidence 1 to 5, and the whole purport of the pleading

2. Determination as to the cause of action

A. The plaintiff's assertion

In the process of the plaintiff's dispute over the illegality of the taxation disposition of this case and the plaintiff's administrative lawsuit mentioned in Paragraph (d) of Paragraph (1), the defendant's head of the Dong branch office, despite the fact that the taxation disposition of this case should be unlawful and revoked as double taxation, asserted that the tax disposition of this case is legitimate of the taxation of this case by intention or negligence, and made the plaintiff bear the litigation cost of 00 won in total as the stamp fee and delivery fee, and the attorney appointment fee, and caused damages corresponding to the above amount. Thus, the defendant is liable to compensate the damages suffered by the plaintiff as the supervisor of the future

B. Determination

In light of the fact that the tax disposition in this case by the head of the same tax office, even though it was recognized as an ex post facto unfair disposition and revoked, such reason alone does not constitute an illegal act by the public official in charge, and it is difficult to recognize the intention or negligence of the public official in charge, and it is difficult to recognize the intention or negligence of the public official in charge, and the plaintiff's claim based on the premise that the public official in charge has performed his duties unlawfully or negligently.

3. Conclusion

If so, the plaintiff's claim shall be dismissed, and the judgment of the court of first instance shall be just and the plaintiff's appeal shall be dismissed as it is without merit, and it is so decided as per Disposition.