It is not subject to return of unjust enrichment because the disposition of imposition cannot be objectively and objectively deemed to have a significant and apparent defect;

In a case where there are objective circumstances that could lead others to believe that a certain legal relation or fact which is not subject to taxation is subject to taxation, and it can only be clarified whether it is subject to taxation or not, if it is necessary to accurately investigate the facts, it cannot be deemed apparent even if the defect is serious, and thus, it cannot be deemed that the taxation disposition misunderstanding the fact subject to taxation is null and void as a matter of course.

2012 Gohap26193 Return of unjust enrichment

○○ Co., Ltd.

Korea

2013.07.25

oly 24, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 124,840,530 won with 5% interest per annum from November 30, 2012 to the service 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. On July 5, 2002, the Plaintiff (the trade name before the change was referred to as “○○○○○○○○○”) was a juristic person established around July 5, 2002, ○○○○○○○-5, 12-9, 12-9, 154, 12-14, 12-14, 338, 12-16, 22,045, 12-17, 12-17, 12-17, 12-17, 12-18, 29, 29, 44, 290 square meters in total (hereinafter referred to as “instant land”).

B. The Defendant-affiliated regional tax office: (a) conducted a tax investigation on the Plaintiff’s ○○○ Hot Spring Co., Ltd. (formerly named “○○○○ Hot Spring Co., Ltd.” hereinafter referred to as “○○○○○ Hot Spring”); (b) from around June 25, 2003 to around August 31, 203; (c) 2, 30,000,000 KRW 78,50,000,00 KRW 25,000,000, KRW 365,000,000; and (d) 4,000,000 KRW 25,000,000, KRW 36,000,000; and (e) 3,000,000,000 KRW 5,00,000; and (e) 2, 203,000,06,000 won for the instant land donated to the Plaintiff for 25,37.

C. Around February 13, 2007, the Plaintiff filed a civil petition for grievance with the purport that the Plaintiff paid KRW 1 billion as the acquisition price of the instant land, and thus, it is unreasonable to impose taxes by transferring ownership without compensation. As a result, the National Ombudsman recommended ○○ Tax Office to re-examine evidence submitted by the Plaintiff on May 21, 2007 to rectify the disposition of corporate tax for 2002 business year.

D. Around September 6, 2007, the head of ○○○ Tax Office: (a) was divided on September 2, 2002 into ○○○○○-do 12-5 forest land, 55,172 square meters to the Plaintiff; (b) part of the divided land is 12-5 forest land and 7 square meters in the same Ri; (c) 12-9 forest and 154 square meters in the same Ri; (d) 12-14 forest and 12-14 forest and 12-16 forest and 22,045 square meters in the same Ri; (b) 12-17 forest and 12-17 forest and 19,176 square meters in the same Ri; (c) the remainder is 12-12-10,645 square meters in the same Ri; and (d) 12-12-21, 501-137 forest and 217-15 forest and 27.

2) ○○○○-si ○○-do ○○-do 12-6 Forest land 22,187 square meters was divided on September 2, 2002. Of these, part of the divided land is 12-18 forest land of the same 29 square meters and 12-28 forest land of the same 2,241 square meters, which is part of the instant land.

As determined in the Suwon District Court Decision 2004Gohap82, 97 (Joint) and 621 (Joint) 3), the acquisition value of the land of this case was corrected as KRW 1,214,970,128 (=2.120 million) x total land of this case 44,990 square meters/78,503 square meters, and less than KRW 44,503 square meters (hereinafter “instant disposition”) and the Plaintiff’s loan 1 billion won was recognized as corresponding liability and was initially imposed as corresponding liability and was charged as corresponding liability by including the Plaintiff’s loan 1 billion in deductible expenses.

E. On November 30, 2012, the Plaintiff paid KRW 159,672,780 as corporate tax for the business year 2002 upon the instant disposition to the head of ○○ Tax Office (= corporate tax of KRW 91,242,130 + surcharge of KRW 68,430,650). Of them, the corporate tax amount related to the instant land is KRW 124,840,530.

2. The plaintiff's assertion

Although the Plaintiff purchased 1 billion won of direct purchase price from ○○○, not the Plaintiff’s donation from ○○, but the Plaintiff’s purchase of the instant land from ○○, the head of ○○ Tax Office determined that it was a substantial donation from a specially related person, and calculated the acquisition price of the instant land as KRW 1,214,970,128, and included it in gross income; and the Plaintiff’s disposition was made by including KRW 1 billion paid in relation to the said land as deductible expenses, as such, the said disposition was null and void as the defect is significant and obvious, and the Defendant is obligated to return KRW 124,840,530 paid by the Plaintiff in relation to the instant land as unjust enrichment.

3. Determination

3) The sales price of 00 million won, including the instant land, was recognized as KRW 2.12 billion in total of 12-5 square meters in 00,000 square meters in 00,000,000 square meters in 00,000,000 in 0,000,000 square meters in 0,000,000,000 square meters in 0,000,000 square meters in 0,000

In order for a taxation disposition to be null and void as a matter of course, the mere fact that there is an illegal ground for the disposition is insufficient, and its defect is objectively obvious in an important statute, and it is necessary to examine the purpose, meaning, function, etc. of the law that serves as the basis for the taxation disposition in a teleological context and to reasonably consider the specific case itself. From this perspective, in a case where it is obvious that a taxation disposition is imposed on a person who has no legal relation or factual relation which is the basis for the taxation disposition, even though it is serious, it is obvious that there is a defect, but it is apparent that there is an objective reason to believe that it is subject to taxation due to any objective circumstance that it is subject to taxation, if it is possible to accurately investigate the facts, it cannot be said that it is apparent even if the defect is serious, and thus, it cannot be said that the taxation disposition that misleads the fact of taxation is null and void as a matter of course (see Supreme Court Decision 96Nu12634, Jun. 26, 1998).

According to the facts found in paragraph (1) and evidence No. 4 and No. 7, it was reasonable for the Plaintiff to accurately purchase and sell the above land to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, which was not subject to the instant tax investigation, based on the fact that the Plaintiff actually purchased the land from ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, which was not subject to the instant tax investigation, and thus, it was difficult for the Plaintiff to separately conclude a sales contract to purchase the land from 00 million won on the grounds that the Plaintiff was not subject to the instant tax investigation for KRW 260,000,000,000.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.