The plaintiff's lawsuit of this case seeking the revocation of the defendant's rejection notification of this case is illegal.

The defendant's refusal notice of this case cannot be viewed as a disposition that specifically and directly affects the existence or scope of the plaintiff's right to claim the refund of value-added tax, and thus does not constitute an appeal litigation

Article 51 (Appropriation and Refund of National Tax Refund)

2017Guhap20737 Disposition rejecting the rectification of value-added tax

AA

○○ Head of tax office

January 11, 2018

January 25, 2018

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

Value-added tax imposed on the Plaintiff on June 15, 2016 by the Defendant on June 15, 2016 ○○○○, and value-added tax imposed on the Plaintiff.

A disposition rejecting the refund or rectification of ○○○ for a period of two years in 2014 shall be revoked.

1. Details of the disposition;

A. BB from June 13, 2014 to January 2, 2015, the Plaintiff issued a tax invoice ○○○○ (hereinafter referred to as “instant tax invoice”) stating that the Plaintiff, who was engaged in the wholesale and retail business of scrap metal and scrap metal in its trade name, was supplied with the aggregate amount of ○○○○○○ and ○○○○○○○○○ (hereinafter referred to as “instant tax invoice”) from June 13, 2014 to December 31, 2014. Accordingly, the Plaintiff filed a value-added tax return.

B. Around that time, CCTV Co., Ltd. and DDD Co., Ltd., a purchaser of the instant tax invoice, paid a value-added tax on the output tax amount stated in the said tax invoice according to the special case for the purchaser of copper scrap under Article 106-9(3) of the Restriction of Special Taxation Act.

C. On July 2015, the director of ○○ Regional Tax Office: (a) determined that the Plaintiff issued only the instant tax invoice without real transactions; (b) accused the Plaintiff to the prosecution for violating the Punishment of Tax Evaders Act; and (c) notified the Defendant of the relevant tax data.

D. On November 9, 2015, on the ground that the instant tax invoice was prepared differently from the fact, the Defendant revised the first and second value-added tax in 2014 as indicated in the following table, and notified the Plaintiff of the first and second KRW 00 in 2014 as the penalty tax for nonperformance of tax invoices.

E. The Plaintiff filed an objection against the foregoing disposition on November 27, 2015, but the Plaintiff was dismissed on December 30, 2015.

F. On May 24, 2016, the Plaintiff revised all the tax base of the first and second value-added tax in 2014 to KRW 0,00,000. Accordingly, the Plaintiff filed a claim for correction seeking refund of the total value-added tax already paid (hereinafter “instant claim for correction”). However, on June 15, 2016, the Defendant notified the Plaintiff of the refusal on the ground that it does not constitute a ground for filing a claim for correction (hereinafter “instant refusal notification”).

G. The Plaintiff appealed and filed an objection on June 21, 2016, but was dismissed on July 21, 2016, and filed an appeal on September 7, 2016, but was dismissed on December 20, 2016.

[Grounds for Recognition] Unsatisfy, Gap's 1-3, Eul's 1-4 (including virtual numbers), each of the arguments

The purpose of body

2. Judgment on the parties' arguments

A. The parties' assertion

1) The plaintiff's assertion

The Defendant’s refusal of the instant claim for correction, which requested the refund of value-added tax paid, even when considering the value-added tax base for the first and second years of 2014 as zero won, is unlawful.

2) The defendant's assertion

On November 9, 2015, at the same time, a tax invoice was imposed against the Plaintiff as of November 9, 2015, while the tax invoice was revised for the first and second years of 2014. Nevertheless, the Plaintiff filed a claim for correction of this case after the 90-day period for filing the claim for correction expires. Thus, even if the Defendant rejected the Plaintiff’s claim for correction of unlawful nature, it cannot be viewed as a rejection disposition subject

B. Determination

1) Whether the notice of refusal of this case constitutes a rejection disposition subject to administrative litigation

Article 51 of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006) constitutes unjust enrichment received or held by the State without legal cause despite the existence of tax liability from the beginning or the lapse of the tax liability. The provisions on the determination of national tax refund merely provide for the refund procedure to the national tax refund for which the tax authority has already determined the tax payer’s right to claim refund, and it is not confirmed that the right to claim refund is only determined by the national tax refund determination under the above provisions. Thus, the determination of refusal of refund of the national tax refund or the request for the determination is not a disposition that specifically and directly affects the existence or scope of the tax payer’s right to claim refund, and thus cannot be deemed as a disposition subject to appeal (see, e.g., Supreme Court Decision 2007Du4018, Nov. 26, 2009). Meanwhile, in light of the contents, form and purport of the refund tax provisions under the Value-Added Tax Act, the State’s duty to claim refund of tax amount should be determined by 13.

In full view of the purport of each of the above evidence, the Defendant’s first and second values added tax in November 9, 2015 was corrected as zero won. The Plaintiff imposed additional tax in 2014, 1, 4,363,560 won, 2014, and 2, 74,189,480 won in 2014, 2014, and the Plaintiff filed the instant correction claim with the Defendant on May 24, 2016 to seek refund of value-added tax ○○○○○○○ upon the above correction order, and the Defendant notified the Plaintiff of the refusal of the instant request on the ground that the Plaintiff did not constitute a ground for filing a request for correction. According to the above facts, in light of the legal principles as seen earlier, the Plaintiff’s refusal notice is not a refusal disposition against the Plaintiff’s request for refund rejection of value-added tax, but is not a specific and direct measure affecting the Plaintiff’s right to claim refund of value-added tax, and thus, the Plaintiff’s claim for revocation of the instant disposition is not unlawful.

2) Whether the Plaintiff is the person entitled to claim the refund of value-added tax

According to Article 51(1), (6), and Article 2(10) of the Framework Act on National Taxes, the head of a tax office is obligated to pay the taxpayer the amount remaining after appropriation of national taxes overpaid or erroneously paid, and the taxpayer is obligated to collect and pay national taxes under the tax-related Acts. In the case of value-added tax, in principle, the taxpayer is an entrepreneur who supplies goods or services, and thus the right to claim repayment is also the entrepreneur who supplies goods or services.

However, in the case of special goods such as copper scrap, etc., one person who discontinues the business without paying the value-added tax collected by transaction and omits the tax, and Article 106-9 of the Special Tax Treatment Act was newly enacted on May 10, 2013. In order to prevent the evasion of the output tax amount, Article 106-9 of the Special Act on Taxation was newly established, which stipulates that the purchaser shall pay the value-added tax in the transaction of copper scrap, etc. to prevent the evasion of the output tax amount. The above provision was enforced from January 1, 2014.

According to Article 106-9(2) and (3) of the Restriction of Special Taxation Act, the purchaser shall pay the value-added tax directly due to the supply of goods. Thus, unlike the case of general value-added tax payment, the Plaintiff is a formal taxpayer, and the supplier is not obligated to collect the value-added tax from the purchaser.

Therefore, the purchaser who paid the value-added tax pursuant to Article 106-9 of the Restriction of Special Taxation Act can be regarded as the taxpayer under Article 2-9 of the Framework Act on National Taxes, rather than the simple taxpayer on the value-added tax.

In addition, Article 106-9(11) of the Restriction of Special Taxation Act (amended by Act No. 1527, Dec. 19, 2017) provides that "the amount paid erroneously or in excess of the value-added tax paid by the purchaser under paragraph (3) shall be refunded to the purchaser, notwithstanding Article 51(1) of the Framework Act on National Taxes," and Article 32(2) of the Addenda provides that "the amended provisions of Article 106-9(11) shall also apply to the amount paid erroneously or in excess before this Act enters into force." The purport of the new provision is to clearly provide that the amount paid erroneously or in excess of the value-added tax paid by the purchaser of copper scrap, etc. under the special Act on the Payment by the purchaser shall be refunded to the purchaser. Therefore, the claim for refund of the amount paid erroneously or in excess of the value-added tax paid by the purchaser under the special Act on the Payment by the purchaser is attributed to the purchaser.

Therefore, in case where Article 106-9 of the Restriction of Special Taxation Act applies and the reason for refund arises as the value-added tax amount deposited by the person supplied with copper scrap, etc. falls under the amount of erroneous payment, it is reasonable to view that the claim for refund thereof belongs to the purchaser rather than the purchaser. Therefore, the plaintiff's assertion on the premise that the claim for refund exists is groundless.

3) Whether the imposition of additional tax can be withdrawn or cancelled

The Plaintiff asserts that, insofar as the head of the tax office having jurisdiction over the transaction withCC and DDD, which is at issue with processing transaction, should withdraw or refund the penalty tax imposed by the Defendant, insofar as the Defendant rejected the instant claim for correction, and the head of the tax office having jurisdiction over the transaction with DDD, etc., which is at issue with processing transaction, the Defendant may not seek the cancellation or refund of the imposition of penalty tax not included in the purport

3. Conclusion

Therefore, the instant lawsuit is unlawful and thus dismissed, it is so decided as per Disposition.