Payment of additional dues

In calculating additional charges for refund, each notice revised according to the change in the interest rate of a term deposit in a commercial bank after the enforcement date of each notice as amended, shall apply the additional interest rate on the refund of national taxes, and shall not be deemed contrary to the principle of no taxation without law.

Article 52 of the Framework Act on National Taxes [Additional Payment]

Article 13-2 of the Enforcement Rule of the Framework Act on National Taxes / [Interest Rate on Additional Payment]

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 98,484,692 won with 5% interest per annum from June 25, 2005 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. Under Article 4 of the former Urban Redevelopment Act (amended by Act No. 5116 of Dec. 29, 1995), the Plaintiff Cooperative obtained authorization from the competent authority on December 30, 1987 to implement redevelopment projects of 198,000 cubic meters of ○○○-dong, Seoul, ○○-dong, and 000 square meters of land substitution area designated as a housing improvement redevelopment district pursuant to Article 4 of the same Act.

B. The Plaintiff Union: (a) constructed apartment buildings and welfare facilities with 0,000 households in total with construction sections by dividing the project implementation district into four sections; and (b) constructed apartment and welfare facilities with 0,000 households in total by construction sections; (c) received the approval of the management and disposal plan for the Section 1 and Section 4 on November 23, 192 from the head of the competent Gu on December 3, 1992; (d) received the inspection of the use of the entire apartment on December 31, 193 on December 9, 1994; and (e) issued the notification of the alteration of the sale disposal plan for the housing lots and public facilities on August 25, 1994; (b) issued the notification of the alteration of the sale disposal plan for the housing lots and public facilities on August 25, 1994 to the Defendant, and (e) paid the remainder of 100 households in total except for 00 households in double unit and 100 households in multi-united housing units.

C. The plaintiff union issued a registration of dissolution on April 18, 1996 according to the resolution of dissolution of the general meeting on April 15, 1996, and sold the apartment of 00 households (hereinafter referred to as the "collection facilities of this case") during the business year from January 1, 200 to December 31, 200 (hereinafter referred to as the "200 business year") and filed a return on the total of KRW 2,243,820,820,00 (sale price) from 4,96 to 4,983,842,40 to 06 to 2,243,820,00,00 won (sale price) calculated by deducting the above 00 households' total net income amount from KRW 1,829,766,209,209; KRW 2,616,901; KRW 36,475,205,745,745,72045,7,7547.7.27.

D. On August 2, 2001, the Plaintiff Union filed an application for rectification that the corporate tax amount should be reduced by KRW 720,746,530, which was already paid on the ground that the tax base and tax amount of the corporate tax in March 31, 2001 should be corrected by zero won since the Plaintiff did not have any obligation to pay corporate tax with respect to the sale of the instant withheld facilities. However, on September 13, 2001, the Defendant issued a disposition rejecting corporate tax correction on the ground that the Plaintiff Union deemed the sales price of the instant withheld facilities as the profit, and filed the tax base and tax amount with respect to the Plaintiff.

E. On October 19, 2001, the National Tax Tribunal filed a request for a judgment with the National Tax Tribunal. On July 29, 2002, the National Tax Tribunal excluded 400 million won from the corporate revenue amount of 1999, among the withholding facilities of this case sold by the Plaintiff Union, and corrected the tax base and tax amount, and dismissed the remainder of the Plaintiff Union's request for a judgment. According to the decision of the National Tax Tribunal, the Defendant calculated the remainder of the Plaintiff Association's request for a judgment on May 15, 2001, among the above corporate tax paid in installments under the proviso of Article 52 (1) of the Framework Act on National Taxes, the last payment date of KRW 352,460,230, the amount of KRW 112,00,000,000, and the amount of KRW 500,000,000,0000,000,0000,000 won and KRW 295,2005,05,205,05,000.

- 12,00,000 X16/100,000 X326 ( May 15, 2001 to April 5, 2002) = 5,841,920 won

- 12,000,000X13/100,000 X193 ( April 6, 2002 to October 15, 2002) = 2,810,080 won

Total 8,652,00 won

F. Accordingly, on April 29, 2003, the above court rendered a decision to revoke the Plaintiff’s disposition rejecting the Plaintiff’s application for rectification of corporate tax base and tax amount on the ground that the Plaintiff’s association’s general sales of the withheld facilities of this case did not continue to operate the real estate profit-making business that had already been terminated before the dissolution of the association, but it is intended to liquidate the withheld facilities of this case, which are residual property, and distribute them to the union members. Thus, the Defendant’s disposition rejecting the application for rectification of the Plaintiff’s corporate tax base and tax amount due to the reason that the sales price of the withheld facilities of this case falls under the liquidation income of the Plaintiff association, which is a non-profit domestic corporation, was unlawful, and the Defendant’s appeal (Seoul High Court 2003Nu9079) and the final appeal (Supreme Court 2004Du72144) were all dismissed

G. The defendant decided to refund the remaining tax amount of 592,920,460 won (352,460,230 won on March 31, 2001 +240,460,230 won (352,460,230 won - 112,00,000,000 won) after the first refund decision of May 15, 2001; hereinafter referred to as "the national tax refund of this case") by the above Supreme Court decision of June 23, 2005 (hereinafter referred to as "the second refund decision"). With respect to the portion for the period after the enforcement of each National Tax Service notice of the amended National Tax Service, additional dues 16,267,680 won (7,00 won on March 31, 201 + KRW 2460,000 after the first refund decision of May 15, 2001; hereinafter referred to as "the second refund decision") were also calculated under the following premise that the interest rate of 116,267,670819,408 won (including KRW 41694, 7.

(1)Total 70,164,259 won for additional charges on March 31, 2001 352,460,230 won.

-352,460,230X30/100,000 X1 ( March 31, 2001) = 105,738 won

-352,460,230X16/100,000 X370 ( April 1, 2001 to April 5, 2002) = 20,865,646 won

-352,460,230X13/100,000 X361 ( April 6, 2002 to April 1, 2003) = 16,540,959

-352,460,230X12/100,000X562 ( April 2, 2003 to October 14, 2004) = 23,769,918

-352,460,230X10/100,000 X252 ( October 15, 2004 to June 23, 2005) = 8,881,98 won

(2) A total of KRW 46,103,439 won for additional dues on May 15, 2001 for the remainder of KRW 240,460,230.

[240,460,230X16/100,000 X326 ( May 15, 2001 to April 5, 2002) = 12,542,405 won

-240,460,230X13/100,000 X361 ( April 6, 2002 to April 1, 2003) = 11,284,799

-240,460,230X12/100,000X562 ( April 2, 2003 to October 14, 2004) = 16,216,638 won

[240,460,230X10/100,000 X252 ( October 15, 2004 to June 23, 2005) = 6,059,597 won

[Reasons for Recognition] : Evidence Nos. 1, 2, 3-1 through 3, Evidence Nos. 4, 5-2, Evidence Nos. 6, Evidence Nos. 1 through 3, Evidence Nos. 4-1 through 4, Evidence Nos. 5, and the purport of the whole pleadings

2. Relevant statutes, etc.

Article 52 of the Framework Act on National Taxes

Where the head of a tax office appropriates or pays a national tax refund pursuant to Article 51, he/she shall add an amount calculated according to the interest rate prescribed by Presidential Decree (hereinafter referred to as "additional refund on refund of national taxes") to the national tax refund, taking into account the period from the day following the day specified in the following subparagraphs to the date of appropriation or decision of payment

1. For a national tax refund due to rectification or cancellation of the return or imposition forming the basis of the relevant payment after an erroneous or double payment, or a payment, the day of relevant payment: Provided, That if the national tax refund was paid in two or more installments, it shall be the last day of payment, but if the national refund exceeds the final payment, it shall be each due date of national tax refund computed retroactively in the order of due dates until it reaches such amount;

2.-7. (Omission)

Article 30 of the Enforcement Decree of the Framework Act on National Taxes.

(1) Where the head of a tax office intends to appropriate or refund a national tax refund pursuant to the provisions of Article 51 of the Act, he/she shall determine the additional payment on refund of national taxes.

(2) The interest rate on the additional payment on the refund of national taxes under paragraph (1) shall be three percent per day to 100 won of the national tax refund (amended on December 31, 1981).

(3) The interest rate on the additional payment on the refund of national refund under paragraph (1) shall be the interest rate as determined by the Ordinance of the Ministry of Finance and Economy, taking into account the average interest rate of time deposits with a maturity of one year in a commercial bank.

Article 13-2 of the Enforcement Rule of the Framework Act on National Taxes the interest rate on additional payment

For the purpose of Article 30 (2) of the Decree, the term “interest rate as determined by the Ordinance of the Ministry of Finance and Economy in consideration of the average receipt rate of one-year time deposits in a city bank” means the interest rate determined and publicly announced by the Commissioner of the National Tax Service in consideration of the average of the interest rate of one-year time deposits in a financial institution whose head office is located in Seoul Special Metropolitan City, which has been authorized by

Notice of interest rate applicable to the determination of the additional payment on the refund

[Indication of List]

3. The plaintiff's assertion

A. When a decision of refund was made with respect to the payment of national taxes, the amendment and the notice given by the National Tax Service after the date of payment is to apply the interest rate determined by the National Tax Service as stated in the above Paragraph (2) after the date of payment is to recognize the retroactive effect of the notice. In addition, the matters delegated to the Commissioner of the National Tax Service under the Framework Act on National Taxes, the Enforcement Decree of the same Act, the Enforcement Rule of the same Act, and the Enforcement Rule are only related to the principle of retroactive prohibition of taxation under Article 18(3) of the Framework Act on National Taxes, and the matters delegated to the Commissioner of the National Tax Service.

B. Therefore, in calculating additional charges on the refund of this case’s national tax refund according to the above secondary refund determination, the additional charges on the refund of this case’s national tax should be calculated by applying the interest rate determined by the Presidential Decree (10.95% per annum of March 31, 2001, and 5.84% per annum of May 15, 2001) as of the date when the Plaintiff paid corporate tax as follows.

(1) A total of KRW 130,359,295 for additional dues on March 31, 2001 for KRW 352,460,230.

- 563 days from April 1, 2001 to October 15, 2002

59,530,532 Won = 352,460,230 Won X10.95% X563/365

- From October 16, 2002 to June 23, 2005 982

70,828,763 = (352,460,230- 112,00,000) X10.95% X982/365

(2) Additional dues on 352,460,230 won paid on May 15, 2001, 84,393,077 won

- 1,500 days from May 16, 2001 to June 23, 2005

84,393,077 = 352,460,2305.84% X1,500/365

C. Accordingly, the Defendant is obligated to additionally refund the additional refund on the national tax refund of KRW 214,752,372 ( KRW 130,359,295 + KRW 84,393,077) to the national tax refund, on the ground that only KRW 116,267,680 was refunded by adding the national tax refund to the national tax refund. Thus, the Defendant is obligated to additionally refund the additional refund on the national tax refund of KRW 98,484,692 ( KRW 214,752,372 - KRW 116,267,680) to the Plaintiff.

4. Determination

A. Whether the prohibition of retroactive taxation is against the principle of prohibition of retroactive taxation

Therefore, in the calculation of additional tax refund, the application of the additional tax refund rate to the additional tax refund rate prescribed by the Acts and subordinate statutes after the enforcement date of the amended Acts and subordinate statutes, etc. as mentioned in paragraph (2) is to recognize the retroactive effect of the notice, and it is to examine whether it is not permitted under the principle of prohibition of retroactive taxation as stipulated in Article 18 (3) of the Framework Act on National Taxes.

In the event of the enactment or amendment of tax-related Acts and subordinate statutes, or any revision to the interpretation or guidelines of the tax authority for the tax-related Acts and subordinate statutes, the pertinent Acts and subordinate statutes cannot be applied to the taxation-related facts that have been closed before the entry into force, and it does not restrict the application of new Acts and subordinate statutes to the taxation-related facts that have been continued before or after the entry into force.

Article 52 of the Framework Act on National Taxes provides that "the head of a tax office shall add an amount calculated according to the interest rate prescribed by the Presidential Decree (hereinafter referred to as "additional refund on national tax") to the national tax refund in consideration of the period from the day following the day specified in the following subparagraphs to the day when the refund of national tax is appropriated or paid pursuant to the provisions of Article 51, and the deposit interest rate of financial institutions." Accordingly, Article 30 (2) of the Enforcement Decree of the Framework Act on National Taxes provides that the above interest rate shall be 100 won per day. However, Article 30 (2) of the amended Enforcement Decree of the same Act of December 29, 200 provides that the above interest rate of national tax refund shall be 10 won per day before the enforcement date of the amended Act of this Act, which provides that the defendant's right to the additional refund on national tax refund shall not be applied to the amount of national tax refund calculated by taking into account the average interest rate of one-year term deposit in a commercial bank, the above interest rate of national tax payment on national tax refund shall be 10.

B. Whether it is invalid as it goes beyond the delegation scope of higher statutes

Next, in the notice of each revised National Tax Service, it is examined whether the provision that "the supplementary notice applies to the portion of the period after the enforcement date of the higher law," which provides that "the supplementary notice shall apply to the portion of the period after the enforcement date of the higher law," is null and void. In general, since the enforcement date of the above Acts and subordinate statutes is the principle after the enforcement date, and even considering the contents of the above Acts and subordinate statutes, "the interest rate on additional dues" is the concept of the period to which the interest rate is applied as a matter of course, and even if it was not expressly delegated "the fixed period portion" in the above Framework Act on National Taxes or the Enforcement Decree of the same Act and the Enforcement Rule of the same Act and the Enforcement Rule of the same Act, as it is the concept of the period to which the interest rate is applied as a matter of course, it shall not be deemed null and void because it goes beyond the delegated scope

5. Conclusion

Therefore, if the refund decision is made with respect to the paid national tax, the plaintiff's claim of this case based on the premise that the above supplementary provision of the above supplementary provision of the notification of the National Tax Service to apply the interest rate on the refund of national tax for the period after the enforcement date of the revised notification of each National Tax Service in calculating additional tax refund shall be dismissed as it is without merit, and the judgment of the court of first instance is just in this conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per