[1] The legal nature of the appropriation of national tax refund and the method of litigation where the appropriation is invalid (=civil procedure)

[2] The case holding that where a transfer income tax refund claim on global income was transferred to a third party and the tax authority appropriated the refund money on the transfer income tax, which is the other delinquent tax of the transferor, but the disposition imposing the transfer income tax was revoked thereafter, the said transfer income tax shall be null and void since it did not exist from the beginning, and the right to return is not a refund of the transfer income tax but a refund of the global income tax on global income

[1] The appropriation of the national tax refund is not a disposition that specifically and directly affects the existence, scope or extinction of the right to claim the refund of the taxpayer, but rather is similar to a set-off under the Civil Act in that the State's obligation and the tax claim ceases to exist from the equal amount. In the event there is no tax claim extinguished or the claim becomes null and void or cancelled automatically, the taxpayer may claim for the return of the national tax refund already determined by civil procedure at any time on the ground that there is no effect of appropriation.

[2] The case holding that where a transfer income tax refund claim on global income was transferred to a third party and the tax authority appropriated the refund money on the transfer income tax, which is another delinquent tax of the transferor, but the disposition imposing the transfer income tax was revoked thereafter, the said transfer income tax shall be null and void since it did not exist from the beginning, and the right to return is not a refund of the transfer income tax but a refund of the global income tax on global income.

[1] Article 2 of the Administrative Litigation Act, Article 51(2) of the Framework Act on National Taxes, Articles 30 and 31 of the Enforcement Decree of the Framework Act on National Taxes / [2] Article 51(2) of the Framework Act on National Taxes, Article 30 and Article 31 of the Enforcement Decree

[1] Supreme Court en banc Decision 88Nu6436 delivered on June 15, 1989 (Gong1989, 1096) Supreme Court Decision 88Nu6610 delivered on February 13, 1990 (Gong1990, 679) Supreme Court Decision 89Nu2912 delivered on April 27, 1990 (Gong190, 1182), Supreme Court Decision 92Nu14250 delivered on December 2, 1994 (Gong195Sang, 513)

Plaintiff (Attorney Cho Chang-ho, Counsel for the plaintiff-appellant)

Korea

Seo-gu Busan Metropolitan Government (Law Firm Sejong, Attorney Kim Ba-young, Counsel for defendant-appellant)

Supreme Court Decision 2001Da9137 Delivered on April 11, 2003

Busan High Court Decision 2003Na5276 delivered on October 15, 2003

The appeal is dismissed. The costs of appeal are assessed against the Intervenor, and the remainder are assessed against the Defendant.

1. The appropriation of the national tax refund is not a disposition that specifically and directly affects the existence, scope, or extinction of the right to claim the refund of the taxpayer, but rather similar to a set-off under the Civil Act in that the obligation of the State and the tax claim ceases to exist on an equal amount. In the event there is no tax claim extinguished or the claim becomes null and void or cancelled on an inevitable basis, the taxpayer may claim for the return of the national tax refund already determined by civil procedure at any time on the ground that there is no effect of appropriation (see Supreme Court Decision 92Nu14250 delivered on December 2, 1994).

In the same purport, the court below is just in holding that the transfer request, which was confirmed against the non-party, was valid on the ground that the claim for refund of global income tax of this case was transferred to the plaintiff, and the subsequent transfer request (payment request following acquisition) was appropriated by the tax authority for the transfer income tax of the non-party, which is the non-party's other delinquent tax, and then the disposition imposing transfer income tax was revoked, since the above transfer income tax did not exist from the beginning, and thus, the above transfer request is not the claim for refund of transfer income tax but the claim for refund of global income tax of this case. In so doing, the court below did not err in the misapprehension of legal principles as to the validity of appropriation for refund of national tax refund,

2. According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning, and determined that the Defendant’s act of paying part of the refund amount against the Defendant Intervenor, in good faith and without negligence, cannot be deemed as the Defendant’s act of paying part of the refund amount against the Defendant Intervenor, on the ground that the Nonparty’s right to claim the refund amount was already transferred to the Plaintiff before the Defendant Intervenor’s attachment and the transfer request was received by the tax authority on March 20, 199, on the grounds that the Nonparty’s right to claim the refund amount was already transferred to the Plaintiff before the Defendant’s attachment, and that the transfer request was received by the tax authority on March 20, 199.

In light of the relevant statutes and the records, the above recognition and judgment of the court below are just and there is no error of law as alleged in the ground of appeal No. 2, such as misunderstanding of legal principles as to the validity of repayment

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)