If the defect in appearance is not objectively apparent, the taxation disposition cannot be deemed to be void as a matter of course.

In order for a taxation disposition to be null and void as a matter of course, it is insufficient to say that there is an illegal ground, and that the defect is an important violation of laws and regulations, and it must be objectively apparent. Therefore, the instant taxation disposition cannot be deemed null and void as a matter of course, where the defect of the taxation disposition is objectively apparent.

2011 Doz. 4376 Unjust Enrichment

XX

Korea

May 11, 2012

May 25, 2012

1. Each of the claims of the plaintiff and the independent party intervenor are dismissed.

2. Of the costs of lawsuit, the part between the plaintiff and the defendant shall be borne by the plaintiff, and the part arising from the independent party participation by the independent party intervenor

The defendant shall pay 00 won to the plaintiff and 20% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

The defendant shall pay 00 won and 20% interest per annum to the intervenor of the independent party (hereinafter referred to as the "participating") from the day following the day of service of a copy of the application for participation in this case to the day of full payment.

1. Basic facts

A. The Plaintiff is a child of the network EA (Death of April 15, 2009) and this BB is a child of the network ECC (Death of December 26, 2006) and the network EA is a 7th degree of the network ECC.

B. 6 lots of land, including 55-1 forest land, 93,124 square meters, in Busan Geum-dong, Busan, (hereinafter “the forest of this case”) acquired ownership. On July 31, 1999, the provisional registration of the right to claim the transfer of ownership under the name of the deceased Lee Dong-A was made, and on some land, the ownership transfer registration was made on April 17, 2003 in the name of the deceased Lee Dong-dong.

B. On May 20, 2005, the Intervenor entered into a sales contract to purchase the instant forest at an ordinary rate of 000 won (hereinafter “instant sales contract”) with the EA and EB representing the EA and the EB, and paid 000 won down payment to the EB on May 24, 2005.

(d) Five copies of the Check of 000 won, out of the down payment received from the Intervenor, deposited on May 27, 2005 in the one bank account (******************************************) on July 26, 2005.

E. On December 1, 2008, the judgment of the court below and the court below ruled that the forest land of this case was donated to the deceased CC on the ground of the claim for the provisional registration cancellation of the deceased CC heir's heir's registration, etc., and that the above 00 won was donated to the deceased CC, and the gift tax was imposed on this case (hereinafter "the tax disposition of this case"). After the plaintiff filed a lawsuit against the deceased NA to the effect that "the sales contract of this case was null and void, and the down payment already paid is returned to the 00 won," and the judgment was affirmed in both the first and second court (the Busan 2007 Gohap District Court No. 19467, 19467, Busan 2008 Na16462), and the judgment became final and conclusive.

F. On November 16, 2009, the intervenor filed an application for a compulsory auction against the real estate, the ownership of which has been transferred under the name of the network A among the forest of this case, based on the above final judgment, and as a result of the auction, among the amount of 00 won to be actually distributed on August 10, 2010, the Busan Franchi Office received 00 won in relation to the forest of this case and 000 won in relation to the gift tax against the deceased LA in the second priority order, and 300 won in relation to the remaining balance of 00 won in the amount of credit (hereinafter referred to as the "distribution procedure of this case").

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 10 (including each number), Eul evidence 1-2

2. Judgment on the defendant's main defense

The defendant, in the distribution procedure of this case, received 00 won from the defendant in the second order, and received 000 won, which is a part of the claim amount, from the intervenor, in the third order. As such, the defendant's taxation disposition is null and void as alleged by the plaintiff, and even if the defendant unjust enrichment was made by the defendant, the legitimate right to claim for return of unjust enrichment is the intervenor. Thus, the plaintiff's claim

On the other hand, the plaintiff sought the return of unjust enrichment against the defendant. In the lawsuit for performance, the plaintiff's standing to be a party is a person who asserts that he/she has the right to demand performance, which is a subject matter of lawsuit, and whether or not he/she actually has the right to demand performance should be proved through the deliberation of the merits (see Supreme Court Decision 2003Da44387, Oct. 7, 2005). The defendant's defense is about the assertion about the existence of the right to demand performance, which is a subject matter of lawsuit for the examination of the merits, and therefore, it

3. Judgment that the plaintiff fested about the plaintiff's claim

A. The plaintiff's assertion

The Plaintiff asserts that the Defendant’s receipt of a dividend of KRW 000 on August 10, 2010, based on such taxation disposition, should return to the Plaintiff as unjust enrichment.

B. Determination

Inasmuch as the occurrence of damages in a lawsuit seeking a return of unjust enrichment filed by a non-right holder while receiving a distribution as in the instant case, is the requisite thereof, and even if a creditor having the right to claim a return of unjust enrichment did not receive a distribution and received a distribution by a non-right holder, a person entitled to seek a return of unjust enrichment may not seek a return of unjust enrichment by a right holder, i.e., a person who suffered losses, who would not have been able to receive a distribution if said distribution was not erroneous, or a person who could not receive a distribution if said distribution had not been erroneous (see Supreme Court Decision 9Da53230, Oct. 10, 200)

The Defendant, on the date of distribution, received dividends of KRW 000 out of KRW 000,00, and the remaining amount of KRW 000,000, as seen earlier, was paid to the Defendant by the third intervenor. Therefore, even if the Defendant’s dividends were erroneously paid to the Defendant, the Plaintiff cannot seek a return of unjust enrichment against the Defendant, because the Plaintiff was not a right holder entitled to receive dividends. Therefore, the Plaintiff’s assertion on this part is without merit without having to further examine.

4. Judgment dismissing the Intervenor’s claim

A. The assertion

The Intervenor, prior to the instant taxation disposition, conducted the instant tax disposition with the Defendant’s knowledge of title trust with respect to the deposit account in the name of the netCC, even though the Defendant investigated the netA’s deposit account prior to the instant tax disposition. As such, the Intervenor asserts that the defect is so significant that it is null and void, and accordingly, the Intervenor may seek a return of unjust enrichment with respect to KRW 00,000, which was paid by the Defendant in the second order.

B. Determination

Unless a substantial and apparent defect exists in a taxation disposition, the tax paid pursuant to the disposition cannot be deemed as unjust enrichment. In order to make the taxation disposition null and void abruptly, it is insufficient to say that there is an unlawful cause. The defect is in violation of important laws and regulations, objectively apparent. In determining whether the defect is significant and obvious, it is necessary to consider the purpose, meaning, function, etc. of laws and regulations on the basis of the taxation disposition in question in a teleological context and to reasonably consider the specificity of the specific case itself at the same time. From this point of view, the tax disposition is imposed on a person who does not have any factual relation, such as legal relation or income or act, which is subject to taxation, must be significant and apparent, but it is not clear that the defect is not subject to taxation, because objective circumstances exist to believe that it is subject to taxation, and it can only be found that the factual relation is clear whether it is subject to taxation, and thus, it cannot be said that the defect is apparent even if it is serious.

Considering the overall purport of the arguments in the statement No. 1-1, No. 1-2, and No. 1-2, and No. 2-1 of the second floor, the tax authorities under the Defendant’s control at the time of the instant taxation disposition based on the fact that the Plaintiff donated KRW 000 to the Plaintiff at the time of the instant taxation disposition, and that the Plaintiff’s tax authorities imposed gift tax on the basis of this, the Plaintiff’s request to the Tax Tribunal for the judgment dissatisfied with the instant taxation on Dec. 9, 2008, the Plaintiff alleged that the amount of KRW 00 deposited in the Plaintiff’s account was the down payment for the sale of land owned by the Plaintiff, and thus, the disposition imposing gift tax is unreasonable. According to the investigation report on No. 2008, Jun. 2, 2008, the fact that “The Plaintiff did not submit a clear evidence, but did not consider it as a gift,” among the opinions on this case’s taxation.

Therefore, it is difficult to conclude that the Defendant had prior knowledge of the fact that the deposit account under the name of the deceased Lee-A was held in title trust, as alleged by the Intervenor in the report on the closure of the investigation into the deceased Lee-A-A-state. From the perspective of the tax authority at the time of the instant tax disposition, the tax authority’s objective and external position is the name of the deceased-A-state, and thus, there may be reasonable grounds to determine that KRW 00,00, the deposit account under the name of the deceased-A-state, was reverted to the deceased-A-state. Whether the deposit account under the name of the deceased-A-state was the nominal trust account or 00,00 won was actually attributed to the deceased-A-A-state can only be determined by the Defendant’s factual basis, in light of the fact that the defect of the instant tax disposition could not be objectively and objectively deemed to be apparent, and thus, it cannot be deemed to be null and void.

In addition, the Intervenor asserts that the instant tax disposition was null and void as it was a disposition with regard to the fact that the instant forest and land were owned by the network EA, not the ownership of the network ECC while the lawsuit is pending, and that the instant tax disposition was a legitimate purchase price reverted to the network EA, and thus, it was null and void.

It is difficult to recognize that the forest of this case is owned by the network Lee-A solely on the basis of the statement of Nos. 1 (including the serial number) as shown above, and there is no other evidence to acknowledge it, and the Intervenor’s above assertion is without merit without further review.

5. Conclusion

Therefore, the plaintiff's claim and the plaintiff's claim based on the premise that the tax disposition in this case is null and void as a matter of course are dismissed as it is without merit. It is so decided as per Disposition.