The disposition on default based on a tax claim that falls under a rehabilitation claim is null and void, and thus constitutes unjust gains.

After the rehabilitation plan approval is issued, the act of using the value-added tax refund issued by the plaintiff as part of the disposition on default on the basis of the claim subject to withholding, at will, for the claim subject to withholding, and the act of appropriating the claim upon request of the plaintiff for collection on the plaintiff's debtor is invalid as it obtains satisfaction

Articles 131 and 171(1)9 of the Debtor Rehabilitation and Bankruptcy Act

2016 Gohap74022 Undue gains

BBB Corporation

Korea

June 22, 2016

September 2, 2016

1. The defendant shall pay to the plaintiff 259,755,830 won and 71,833,830 won among them, 5% interest per annum from January 16, 2016 to September 2, 2016, and 15% interest per annum from April 27, 2016 to September 2, 2016 to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

Cheong-gu Office

The defendant shall pay to the plaintiff 259,755,830 won and 71,833,830 won among them, 5% per annum from February 19, 2013 to the service date of a copy of the complaint in this case from March 29, 2013 to the service date of a copy of each complaint in this case, and 15% per annum from the next day to the day of complete payment.

1. Basic facts

A. The director of the CCC tax office under Defendant’s jurisdiction denied the Plaintiff’s input tax deduction for each tax invoice received between DD and EE, etc., and corrected and notified the Plaintiff of the change in the amount of income that the Plaintiff disposes of the total amount of KRW 1,157,572,00 in the calculation of earnings, as it is deemed that the market value of the real estate registered in the FF name was leaked in excess of the processed sales amount in the same taxable period. The amount of the real estate tax was calculated in the calculation of earnings by wrongful calculation, etc., and the Plaintiff was deemed to have leaked in the process of receiving each tax invoice on November 11, 2011, and was deemed to have been distributed outside the company in the process of receiving each of the above tax invoice, and the Plaintiff notified the change in the amount of income that the Plaintiff disposes of the total amount of KRW 1,157,572,00 in the calculation of earnings by recognizing the representative director of the Plaintiff’s company and the corporate tax amount.

B. On February 7, 2012, the Plaintiff dissatisfied with each of the above taxation dispositions by the director of the CCC and filed a request for a trial with the Tax Tribunal on February 7, 2012. On December 12, 2012, the Tax Tribunal rendered a decision to rectify the tax base, tax amount, and the amount subject to the notice of change in the amount of income by reviewing whether the real transaction was conducted between the Plaintiff and EE, and whether the Plaintiff’s employees were

C. Pursuant to the decision on re-audit, from December 28, 2012 to January 25, 2013, HCC issued a re-audit to the Plaintiff, and notified the Plaintiff of the results of the relevant tax audit on January 28, 2013 by reducing part of the initial amount of taxation. According to the findings above, the CCC head of the tax office notified the Plaintiff of change in the amount of income that the Plaintiff disposes of KRW 708,032,210 as a result of the investigation, and the CCC head of the tax office notified the Plaintiff of the change in the amount of income that the Plaintiff disposes of the amount of KRW 708,032,210 as a result of the said investigation, and paid KRW 352,905,344 and corporate tax 784,737,501 onO. 201

D. After the aforementioned taxation disposition, the director of the CCC did not pay the Plaintiff the withholding labor income tax based on the change in the amount of the income of the representative director GG. On February 19, 2013, the CCC head of the tax office applied the Plaintiff the refund 71,83,830 won of the value-added tax refund for the second period of February 19, 2012 against the Plaintiff to the withholding labor income tax, and on March 14, 2013, upon request from the JJ to collect the amount of the government-paid construction work that the JJ paid to the Plaintiff for the collection of the Plaintiff’s amount of national taxes in arrears, he received KRW 187,922,00 from the JJ on March 29, 2013, and on the same day, prepared a receipt for the Plaintiff to pay the amount of the said KRW 187,922,000 as the earned income tax withheld from the JJ on the same day (hereinafter “tax claim subject to withholding tax”).

E. Meanwhile, on the other hand, the Plaintiff filed an application for commencement of rehabilitation procedures with the Seoul Central District Court 201OO on October 201, 201, and the said court rendered a decision of commencement of rehabilitation procedures with respect to the Plaintiff on October 1, 201, and set the reporting period of rehabilitation claims fromO on October 201 to O.O. 201. On October 2012, the said court issued the rehabilitation plan approval plan with respect to the Plaintiff on the same day after the assembly of interested parties for review of the rehabilitation plan was held. However, the CCC head of the tax office did not report rehabilitation claims regarding the claim subject to withholding after the lapse of the above reporting period of rehabilitation claims, and the said court filed a subsequent supplement report on the rehabilitation claim only on October 20, 201, and the said court terminated the rehabilitation plan after the report of the CCC head of the tax office on October 20, 2012.

[Ground of recognition] Facts without dispute, Gap's entries in Gap's Evidence Nos. 1, 2, 3, 6, 7, 8, 9, 10, Eul's Evidence Nos. 1 through 5 (including paper numbers), and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

Under Article 179(1)9 of the Debtor Rehabilitation and Bankruptcy Act, a claim subject to withholding tax of this case constitutes rehabilitation claims. The CCC director failed to report the claim subject to withholding tax of this case as rehabilitation claims in the rehabilitation procedure against the Plaintiff by the deadline for reporting rehabilitation claims under the rehabilitation claim procedure, and the above claim was forfeited or exempted pursuant to Article 251 of the Debtor Rehabilitation Act. Nevertheless, on the ground that the Plaintiff did not pay the withheld labor income tax, the Defendant applied the refund of value-added tax against the Plaintiff for the claim subject to withholding tax of this case on the ground that the Plaintiff did not pay the withheld labor income tax, and received the payment from the JJ upon the request of the JJ for collection of the unpaid construction payment to the Plaintiff. This is based on forfeited or exempted taxation claims, and the Defendant must return each of the above amounts to the Plaintiff as unjust enrichment

B. Defendant’s assertion

1) The time limit for payment of the bonds subject to withholding tax of the instant case shall beO.O., and the commencement of rehabilitation procedures of the Plaintiff

Since the time limit for payment of the above claim at the time of O.O. 201, which is the day, has not yet arrived, the claim subject to withholding of this case constitutes a priority claim under Article 179(1)9 of the Debtor Rehabilitation Act.

2) Even if a claim subject to withholding tax of this case was forfeited or exempted as a rehabilitation claim, it exists as a legally effective natural obligation, and thus, the amount of KRW 187,922,00, which was received from the JJ, does not constitute unjust enrichment.

3. Determination

A. Article 118 subparag. 1 of the Debtor Rehabilitation Act provides that "property claims arising from the cause prior to the commencement of rehabilitation procedures" as rehabilitation claims, and Article 131 of the Debtor Rehabilitation Act provides that "no act extinguishing rehabilitation claims, such as repayment, repayment, or repayment, shall be performed without following the provisions of the rehabilitation plan, except as otherwise provided for in the rehabilitation plan after the commencement of rehabilitation procedures: Provided, That in cases where the custodian reimburses the rehabilitation claims with the permission of the court, and where the custodian is entitled to a claim under Article 140(2) (the claims that can be collected under the National Tax Collection Act or the Framework Act on Local Taxes) and the disposition or continuation thereof is permitted, this provision provides that "the same shall not apply to cases where a third-party debtor arbitrarily performs the collection authority during the suspension of the disposition on default on the debtor's claims seized by the disposition on default." In rehabilitation procedures, any act to obtain satisfaction of the rehabilitation claims by any method other than those provided for in Article 131 of the Debtor Rehabilitation Act is prohibited, and the act in question is null and void (see, etc.).

In addition, according to Articles 180(1) and 179(1)9 of the Debtor Rehabilitation Act, any tax withheld at source, for which the payment deadline has not yet arrived at the time rehabilitation procedures commence, constitutes a public-interest claim, and such public-interest claim may be repaid at any time without undergoing rehabilitation procedures, but the tax on bonus deemed reverted to the representative under Article 67 of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter the same) can be deemed a public-interest claim only if it is withheld. As such, any tax on bonus that is deemed reverted to the representative under Article 67 of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30; hereinafter the same shall apply) that is not withheld from among the taxes that are disposed of as bonus to the representative under Article 67 of the former Corporate Tax Act shall be deemed a rehabilitation claim, not a public-interest claim.

Meanwhile, the appropriation of a national tax refund is not a disposition that specifically and directly affects the existence, scope, or extinction of a claim for repayment of the tax refund held by the taxpayer, but rather similar to a set-off under the Civil Act in that the State’s obligation and the tax claim ceases to exist from an equal amount. In the event there exists no tax claim subject to extinguishment, or the invalidity or revocation is null and void, and in such case, the taxpayer may claim for the return of the national tax refund already determined by civil procedure at any time on the ground that the tax refund does not have the effect of appropriation (see, e.g., Supreme Court Decision 92Nu14520, Dec. 2

According to the above facts, the pertinent tax claim subject to withholding is a tax claim arising from the cause before the rehabilitation procedures commence against the plaintiff, who is the rehabilitation debtor, and is not withheld from the tax that was disposed of as a bonus to the representative GG pursuant to Article 67 of the former Corporate Tax Act. Thus, it constitutes a rehabilitation claim under the Debtor Rehabilitation Act. The CCC head of the tax office has issued the rehabilitation plan approval order for the plaintiff, without filing a report on the above rehabilitation claim with respect to the claim subject to withholding in the rehabilitation procedures against the plaintiff, on the wind that the CCC head of the tax office had the filing deadline for the rehabilitation claim against the plaintiff, and thus,

Therefore, the Defendant’s arbitrary appropriation of the value-added tax refund of the Plaintiff as part of the disposition on default based on the claim subject to withholding tax of this case after the approval for rehabilitation plan was issued against the Plaintiff, and the Plaintiff’s act of appropriating the amount of government-funded construction work payable to the Plaintiff by the JJ, which is the Plaintiff’s debtor, for collection of the amount of government-funded construction work subject to withholding tax of this case, and then the act of appropriating the claim subject to withholding tax of this case to the Plaintiff is invalid as an act of a rehabilitation creditor obtaining satisfaction of the rehabilitation claim in a way other than the manner provided for in Article 131 of the Debtor Rehabilitation Act. Thus, the Defendant is obliged

B. As to the defendant's assertion of natural debt

1) The defendant asserts that even if the claim subject to withholding tax of this case was forfeited or exempted as a rehabilitation claim, it exists as a legally effective natural obligation, so the defendant's payment of KRW 187,922,00 from JJ does not constitute unjust enrichment.

2) The main text of Article 251 of the Debtor Rehabilitation Act provides that, when there is a decision to authorize the rehabilitation plan, the debtor is exempted from liability for all rehabilitation claims and rehabilitation security rights except for the rights recognized by the rehabilitation plan or by this Act, and that all the rights of shareholders and equity right holders and the debtor’s property are extinguished. Here, it is reasonable to view that: (a) the claims themselves remain in existence, but they cannot compel the company to perform; (b) therefore, even if there was a decision to authorize the rehabilitation plan against the plaintiff, the obligation subject to withholding tax in the instant case continues to exist as a natural obligation; (c) on the other hand, the natural obligation is a non-arguable obligation; and (d) the obligor is still effective as repayment only when

However, as seen earlier, the director of the CCC did not pay the Plaintiff the instant withheld labor income tax based on the change in the amount of income of the representative director GG. On March 14, 2013, the director of the CCC sent a public notice to the JJ, a debtor of the Plaintiff, requesting the Plaintiff to cooperate in collecting the Plaintiff’s amount of national tax in the amount of national tax in arrears out of the amount of the government-paid government-paid construction cost payable to the Plaintiff. Accordingly, the Plaintiff received the amount of KRW 187,922,00 from the JJ and appropriated the amount for the claim subject to withholding tax. In light of these circumstances, the Plaintiff did not voluntarily pay the instant withheld labor income tax through the CCC Tax Office through the JJ, the debtor of the Plaintiff, without the consent or approval of the director of the CCC, but instead, the CCC sent the public notice of request for collection to the JJ to the Plaintiff and appropriated the instant withheld labor income tax claim against the Plaintiff. Therefore, it is difficult to acknowledge that the Plaintiff voluntarily paid the said amount to the Defendant.

Therefore, since the payment of the unpaid government-funded construction costs by the JJ cannot be deemed as a valid repayment, it cannot be deemed as a valid repayment. Therefore, it is reasonable to view that the Defendant’s receipt of KRW 187,922,00 from the JJ constituted unjust enrichment in relation to the Plaintiff. Accordingly, the Defendant’s above assertion on a different premise is rejected.

C. Sub-committee

Therefore, the Defendant is obligated to pay the Plaintiff a total of KRW 259,755,830 (=71,833,830 +187,922,000 +) and damages for delay therefrom. Meanwhile, with respect to KRW 71,83,830 out of the above amount, the Plaintiff seeks damages for delay under the Civil Act and the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from March 29, 2013, which is the date of appropriation, from February 19, 2013, and KRW 187,922,00, which is the date of appropriation, from March 29, 2013.

However, the Defendant’s obligation to return the above unjust enrichment is an obligation with no fixed due date, and the Defendant is liable for delay from the time of receiving the claim for performance. However, there is no evidence to acknowledge that the Plaintiff sought the return of the above unjust enrichment from the Plaintiff before filing the lawsuit in this case. As to KRW 71,83,830, the Defendant shall be liable for delay damages as to KRW 187,92,00 from the day following the day of serving the copy of the complaint in this case; and as to KRW 187,92,00 from the day after serving

Therefore, with respect to the Plaintiff KRW 259,755,830 as well as KRW 71,83,830 as above and KRW 71,833,830 as above, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at each rate of 5% per annum as prescribed by the Civil Act from April 27, 2016, the day following the day when a duplicate of the instant complaint was served on the Defendant, and from April 27, 2016, the day following the day when a duplicate of the instant complaint was served on the Defendant, and from September 2, 2016, the day after the date when a duplicate of the application for modification of the purpose of the instant claim and the cause of the claim is served on the Defendant.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.