Chuncheon District Court Gangnam Branch-2013-Ga-3169 ( October 02, 2015)

As long as the disposition is not deemed to be null and void, the receipt of the deposit is also lawful.

If it is necessary to clearly investigate the facts and clarify whether it is subject to taxation, it cannot be seen that the defect is apparent even if it is serious, and thus, it cannot be deemed that the illegal taxation disposition that misleads the fact that it is subject to taxation is invalid as a matter of course.

Article 96 of the National Finance Act: Extinctive Prescription of Pecuniary Claim

2015Na5696 Unlawful gains

AA Industry Corporation

Korea

Chuncheon District Court Decision 2013Gadan3169 Decided June 2, 2015

November 3, 2015

November 17, 2015

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 59,510,697 50% interest per annum from May 2, 2003 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

1. Facts of recognition;

A. Receiving the Defendant’s deposit money

1) On September 3, 1997, the head of the Regional Construction and Transportation Section BB deposited 5,591,500 won (hereinafter referred to as “the instant deposit”) as the Plaintiff on September 3, 1997, when the deposited amount was KRW 41,00,00,000, from the date when the deposited amount was transferred to F-D road works by the Seoul District Court D. D. D. court in 97, and the deposited amount was owned by the Plaintiff.

2) On September 8, 1997, the Director of the DD Tax Office (the Enforcement Rule of the Office Regulation of the National Tax Service and its affiliated agencies was amended by Ordinance of the Ministry of Finance and Economy No. 150 on July 1, 2000, and the director of the GG Tax Office succeeded to the authority of the Director of the GG Tax Office; hereinafter “the Director of the GG Tax Office”) attached the right to claim the payment of the instant deposit amount of KRW 621,108,880, which

3) On March 16, 1998, the Defendant received dividends of KRW 53,456,230 out of the said deposit under the District Court HH support 1998TA187.

4) On May 2, 2003, the Defendant filed a request for withdrawal of the said dividends paid to the High Court HH branch DDD court, and received KRW 59,510,697, including interest (hereinafter “the instant payment”).

B. Imposition of preceding disposition

The head of GG tax office imposes a total of KRW 319,705,863 on January 16, 1996 on the Plaintiff A industry, KRW 319,705,863 [20, J-dong 6910 square meters, approximately 1,169.9 square meters, KRW 6910-1,043 square meters, and KRW 4202, approximately 286.6 square meters, and its ground (hereinafter referred to as the “J-dong real estate”), and imposed a total of KRW 97.3 square meters on March 1, 1997, KRW 199, KRW 209, KRW 193,620 (hereinafter referred to as the “instant imposition disposition”) and KRW 97.3 square meters, respectively, and imposition disposition on KRW 95.3 square meters and KRW 97.3 square meters on the instant land (hereinafter referred to as the “special surtax”).

(c) Grounds for the imposition of corporate tax for the business year 201 and for the reduction and correction of corporate tax;

1) The head of the GG tax office imposed upon each of the preceding dispositions [the amount which was not collected until the time) 1,62,013,840 won [the amount which was imposed upon the Plaintiff’s prior disposition =210,941,070 won + 209,193,620 won (the amount which was not collected until the time of the prior disposition) + 14,227,575,60 won (the amount which was imposed on the first 3 disposition), + 1,227,575,60 won (the amount which was imposed on the first 4 disposition), and hereinafter referred to as the “amount of the previous disposition of arrears”] as a result of the disposition on default on the tax amount in arrears including 1,662,013,840 won (the amount which was imposed on the first 1 disposition of imposition on the first 1) and 209,193,620 won (the amount which was imposed on the first 3 disposition on the real property) 10,031,0630.

2) On November 1997, the Defendant imposed corporate tax and special surtax amounting to 285,032,020 won for the transfer margin of 1997, corporate tax and special surtax amounting to 1997, corporate tax and special surtax amounting to 4,891,690 won for the year 197, corporate tax and special surtax amounting to 1997, corporate tax and special surtax amounting to 737,905,300 for the year 1997 (hereinafter referred to as the “assessment disposition of corporate tax and special surtax amounting to 1997”) and imposed corporate tax for the year 199 and special surtax amounting to 00,000,000,000,0000,0000,0000,0000,0000-1,0000 and 297,000-1,000,000.

3) On April 1, 2002, the Defendant: (a) notified the Plaintiff of the corporate tax (including special surtax) tax (including special surtax) for the business year 1999 pro rata 101,267,710,384,200, pro rata 330,736,150 for the business year 2001, respectively; (b) notified the Plaintiff of the corporate tax (including special surtax) for the business year 1999 pro rata 59,38,514, and (c) the corporate tax (including special surtax) for the business year 2,214,688, 200 for the corporate tax (including special surtax) for the business year 200 to the Plaintiff; (c) the corporate tax for the business year 201 to 294,831,36, and 150 for each of the above dispositions (hereinafter referred to as the “assessment disposition”).

C. Appropriation of the instant deposit money

On May 2, 2003, the Defendant appropriated KRW 41,230,740 for the principal tax for the business year year 2001, which is a part of the amount of delinquent tax, among the amount of tax imposed according to each of the dispositions of this case as the receipt of the instant tax, and KRW 18,279,950 for the additional tax, KRW 57,198,50 for the additional tax, and KRW 18,279,950.

Facts without any dispute over recognition, Gap evidence 1-1 through 6, Gap evidence 3-1, 2, Gap evidence 5-4, 5-5, Gap evidence 6-3, 4, Eul evidence 2, 3, and 4, and the purport of the whole pleadings.

2. Summary of the parties’ assertion

A. The plaintiff

1) A petition for invalidation of each prior disposition

On November 30, 1992, the Plaintiff sold KK-dong land to LL Construction Co., Ltd. The Plaintiff defaulted corporate tax. The head of GG had seized land owned by the representative director of MM industry Co., Ltd. (hereinafter “MM industry”) who is the second taxpayer, and ParkM paid 1,62,013,840 won to the Plaintiff for 1,62,840 won. However, in NN District Court 196Ga4699, NG head of GG head of the tax office stated that the amount of 1,62,013,840 won was the amount of delinquent tax as of July 9, 1996, and the amount of 97 GG head of the tax office’s imposition of 97 GG head of the tax office’s 1,662,013,840 won, which was imposed on the Plaintiff for 197 GG head of the tax office’s imposition of delinquent tax for 197 GG head of the tax office.

(ii) Other arguments.

A) The claim for corporate tax of KRW 621,108,880, which is the claim for the attachment of the instant deposit, is corporate tax for the gains from the transfer of the instant real estate in J-dong. However, since the head of the GG Tax Office imposed the previous imposition of KRW 1,40 on the transferor of the instant real estate in J-dong, it is null and void as duplicate taxation, and the instant imposition disposition based thereon is null and void. Accordingly, the Defendant is obliged to pay the Plaintiff the amount of KRW 59,510,697 as a return of unjust enrichment and the delay damages therefrom.

B) Since the Defendant received in excess of the delinquent amount of national taxes due to the public sale of the real estate for public sale in 197, the imposition of corporate tax and special surtax for the year 197 based on the above public sale and each of the instant dispositions based thereon are null and void. Accordingly, the Defendant is obliged to pay to the Plaintiff the amount of KRW 59,510,697, and delay damages.

B. Defendant

1) The taxation by the Director of the GG Tax Office against the Plaintiff cannot be deemed to be null and void as a matter of course.

2) The obligee’s claim for return of unjust enrichment against the instant received amount expired after the lapse of five (5) years under Article 96(2) and (1) of the National Finance Act.

3. Determination

A. Determination on the cause of the claim

1) Relevant legal principles

In an administrative litigation claiming the invalidity of an administrative disposition as a matter of course and seeking the confirmation of invalidity thereof, the Plaintiff is liable to assert and prove the reason why the administrative disposition is null and void (see, e.g., Supreme Court Decision 2009Du3460, May 13, 2010). In general, a taxation disposition is imposed on a person who does not have any factual basis, such as the legal relation, income, act, etc. subject to taxation, with a significant and obvious degree of defect, but in cases where objective circumstances exist that make it possible to believe that the legal relation or fact which is not subject to taxation is subject to taxation and that it is subject to taxation, it can only be clearly examined whether it is subject to taxation, even if the defect is serious, and thus, it cannot be deemed unlawful taxation disposition that misleads the fact of taxation (see, e.g., Supreme Court Decision 2001Du7268, Sept. 4, 2002).

2) As to the petition for invalidation of each preceding disposition

A) Comprehensively taking account of the overall purport of statements and arguments set forth in Gap evidence 7-1, 2, 3, 12, 12-1, 20-4, 1, and 22-4 of Gap evidence 1, 1995, the fact that the head of the GG tax office notified the MM industry of the receipt of KRW 1,662,013,840 as the corporate tax of the plaintiff on July 5, 1995, 2, the response of the GG head of the GG head of the GG head of the tax office to the fact inquiry of the court at the Ansan and MM industry and MMM (N District Court Decision 96Ga46199) was stated as the principal tax,62,013, 840, 165, 292, and 4-4, 1995, 3, 196, 196, 194, 250, 196, 194

B) Meanwhile, comprehensively taking account of the overall purport of evidence Nos. 18 and 5-1 and 3 of evidence Nos. 18 and 5-3, the following facts: ① The Plaintiff’s corporate tax of 1,62,013,840 collected from the MM industry around July 1995; ② the GG head of the tax office imposed on the Plaintiff in connection with the transfer of the land, etc. in the year 1992 by the KG head of the tax office around March 193 (including the special surtax); ② the amount of delinquent taxes up to the time of the tax payment [the first two dispositions are those imposed; the GG head of the regional tax office’s tax office’s tax office’s tax assessment conducted around early 1997 points out that there was error in MM; and accordingly, the amount calculated by deducting the initial determined amount of corporate tax after correcting corporate tax of 192,000,0000,000 from the initial tax office’s tax payment period of 193 years prior to the tax payment period of 193 years 19.2.

C) According to the facts of recognition of the above Paragraph (b) above, the Plaintiff’s corporate tax collected by the head of the GG Tax Office from MM industry is irrelevant to each prior disposition, and on December 31, 1995, the notice of public sale (Evidence (Evidence (No. 12) in the above notice of public sale (Evidence) appears to have mistakenly stated the initial time limit for payment of the tax amount in arrears in the preceding 1 disposition, and on the basis of the fact of recognition of Paragraph (Ga) alone, it is difficult to view that the head of the GG Tax Office imposed the tax amount already paid by the MM industry by mistake in the preceding disposition, and there is no sufficient evidence to acknowledge it differently. Accordingly, the Plaintiff’s aforementioned assertion on a different premise

3) As to the other argument

A) As to the assertion of double taxation

No evidence exists to deem the claim of corporate tax of KRW 621,108,880, which is the claim amount attached to the deposit of this case, as the corporate tax for the transfer margin of real estate in J-dong, the payment deadline of December 31, 1994. Rather, in full view of the entries in evidence No. 5-1 and the overall purport of argument No. 5-1, the above claim of corporate tax and corporate tax pursuant to the disposition of imposition No. 1 and No. 4 can be acknowledged as a separate claim. Accordingly, the Plaintiff’s assertion that differs from the premise is without merit.

B) As to the assertion that excess collection was made

The Plaintiff’s assertion on this premise is without merit, inasmuch as there is no evidence to deem that the amount distributed by the Defendant from the proceeds of the public sale of real estate in 197 for the year 197 exceeds the due amount of tax in arrears in accordance with the disposition on the preceding imposition and other reasonable amount of tax received by the Defendant, and there is no evidence to deem that the Defendant collected the amount from the proceeds of the public sale in 1997 without any need to investigate the facts, the disposition on imposition of corporate tax and special surtax for the year 197 shall be valid, and each disposition on imposition of corporate tax and special surtax for the year 197 shall be valid. In this regard, the Plaintiff’s assertion

B. Judgment on the grounds for extinctive prescription (family judgment)

Even if each of the instant dispositions against the Plaintiff is null and void, the Plaintiff’s claim for return of unjust enrichment resulting from the appropriation of the instant amount is a right to the State against the State, and the five-year extinctive prescription is applied pursuant to Article 96(2)1 of the National Finance Act. The instant claim for return of unjust enrichment has arrived on May 2, 2003, which is the date on which the instant claim was created, and it is apparent in the record that the instant lawsuit was filed on October 14, 2010, which is five years after the date on which the instant claim was created. Therefore, the Plaintiff’s claim for return of unjust enrichment has expired by prescription. Therefore, the Defendant

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.