Plaintiff (Attorney Han-dong, Counsel for the plaintiff-appellant)

Korea

April 11, 2008

Seoul Central District Court Decision 2006Gadan178562 Decided October 9, 2007

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 10 million won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

The reasons why the court's explanation on this part is as follows: "Non-Party 2 corporation establishes a non-party 1 corporation for the purpose of evading taxes" in the first instance court's 2th 3 to 5th 2nd 5th , "Establishment of an advertising agency with the name of Non-party 4, the actual manager of Non-party 2 corporation, the name of which is Non-party 4, "Non-party 1 corporation", "the 1999 business year" in the second 9th 9th 200 "the 200 business year" in the business year "the 200 business year" in the second 2nd 17th 2nd 17th 2nd 200 "this court is the same as the part of the grounds of the first instance court's judgment except for the second 2nd 2nd 2nd 17th 2nd 3rd 2nd 2nd 2nd 200."

2. Determination

A. Summary of the parties' assertion

The Plaintiff asserts that “The instant disposition is null and void as the defect is significant and obvious, and thus, the Defendant cannot oppose the Plaintiff on the ground that it appropriated for the refund money of this case on the national tax in arrears accrued thereafter.” Accordingly, the Defendant asserts that “The instant disposition is lawful to appropriate the refund money of this case for the national tax in arrears, because it is merely a ground for revocation, not the invalidity of the instant disposition.”

B. Determination

(1) The premise for the determination

In full view of the provisions of Articles 51 and 53 of the Framework Act on National Taxes and Article 42 of the Enforcement Decree of the Framework Act on National Taxes, when a taxpayer requests a transfer of the national tax refund to another person by notifying the head of a tax office in writing stating the address and name of the transferor and transferee after transferring the tax refund to him/her, and the contents of the right to transfer, etc., and upon request, the head of a tax office shall immediately appropriate the national tax in arrears, etc., and when there is any national tax in arrears, he/she shall pay it to the transferee if the amount of the national tax in arrears is in arrears. If the head of a tax office fails to appropriate the amount without delay even if he/she receives a legitimate request for transfer from the transferor due to the violation of the provisions, the transferee's claim for the refund that he/she acquired shall be reverted to the transferee, and even if the amount is appropriated for the national tax in arrears of the transferor, it becomes effective in the future as the result of the collection of the tax claim against the property not owned by the transferor.

On the other hand, in the case of a taxpayer's right to claim the refund of national taxes (the amount of tax paid or collected, regardless of the absence of a declaration or imposition, which forms the basis of payment or collection or the invalidity of a deferred payment), the amount already determined at the time of payment or collection, as there is no legal ground from the beginning, and in the case of an excessive payment (the amount of tax reduced in whole or in part by revocation or correction, even though the declaration or imposition is not null and void as a result of its revocation or correction), the right to claim the refund of national taxes becomes final and conclusive at the time when all or part of the tax obligation is extinguished by revocation or correction of the declaration or disposition (see Supreme Court Decision 97Da26432 delivered on October 10, 197). If the instant disposition becomes null and void as a matter of course, the right to claim the refund of national taxes will occur immediately at the time of the payment of the tax amount in accordance with the instant disposition, and if there is a defect which is merely a ground

Ultimately, the time of the occurrence of the national tax refund claim is changed depending on whether the instant disposition is void as a matter of course or not, and accordingly, whether the national tax refund was appropriated without delay, should be examined as follows: (a) whether the instant disposition is void as a matter of course; and (b) whether the pertinent disposition is valid as a matter of course.

(2) Whether the instant disposition is null and void as a matter of course - the time when the instant claim for refund was filed

㈎ 원고의 주장

Although Nonparty 2 was indicted for violating the Punishment of Tax Evaders Act in relation to the tax evasion suspicion, the court rendered a final and conclusive judgment of innocence on the grounds that the transaction between Nonparty 1 and Nonparty 2 was difficult to view it as the processing transaction. Nonparty 1 declared and paid as the output tax amount on the tax invoice issued by Nonparty 2, and reported and paid the comprehensive income tax on the advertising fee. Nonparty 4, who operated Nonparty 1 corporation, did not make a decision to reduce the above global income tax, but did not make a decision to correct the above global income tax against Nonparty 4, who did not impose and collect all the tax amount and imposed the value-added tax and corporate tax on Nonparty 2 by deeming that the tax invoice was processed, is clearly subject to double taxation. According to Article 21 and Article 68 of the Value-Added Tax Act, Article 66 of the Corporate Tax Act, Article 103 of the Enforcement Decree of the Corporate Tax Act, Article 103 of the Enforcement Decree of the Corporate Tax Act, the disposition of imposition of value-added tax and corporate tax must be corrected in light of the procedural tax invoice or other evidentiary documents.

㈏ 판단

In a case where objective circumstances exist to make it clear whether or not a certain legal relation or factual relations which are not subject to taxation is subject to taxation, and it is possible to accurately investigate the factual relations, even if the defect is serious, it cannot be deemed apparent that the taxation disposition that misleads the fact subject to taxation cannot be deemed to be null and void as a matter of course. If the tax authority determines and imposes the tax base and the tax amount in a flexible manner without any grounds, completely disregards the investigation method prescribed by the pertinent tax laws and regulations, it would be deemed null and void as a matter of course due to its significant and apparent defect, but it would be merely a ground for revocation (see Supreme Court Decision 96Nu12634 delivered on June 26, 198).

However, in this case, considering the whole purport of argument as to Gap evidence 5-1 and 2, since the non-party 3, who is the actual manager of the non-party 2 corporation, is the non-party 6, who was an employee of the non-party 5 corporation, the advertisement company, established the non-party 2's advertising agency on December 1, 199. The non-party 1 corporation established the non-party 4's advertising agency on which the non-party 6 was his wife's wife's wife, and operated the non-party 6's business in the manner of reporting the above facts to the non-party 3. The non-party 1 corporation, upon introduction of the non-party 6, stated that the non-party 1 corporation was an owner of the above non-party 1 corporation's real estate in the name of the non-party 2 corporation for 1 year, and that the non-party 2 corporation actually purchased the above non-party 1 corporation's real estate using the electronic sign board plan for 202 years.

On the other hand, the disposition of this case cannot be deemed to constitute double taxation on the grounds as alleged by the plaintiff, and it cannot be deemed that there is a significant and apparent defect in the disposition of this case on the grounds as alleged by the plaintiff for the same reasons as the above. Thus, the disposition of this case on the grounds of such reasons cannot be deemed to constitute abrupt invalidation. Thus, unless the disposition of this case cannot be deemed to be null and void automatically, the claim for refund of this case was made only on March 7, 2006, which made a decision to revoke the disposition of this case by the National Tax Tribunal.

(3) Whether the appropriation is valid

If a national tax refund claim is transferred, it shall be investigated and confirmed whether the transferor has other delinquent national taxes, etc., and if there is any national tax in arrears, etc., the remaining amount shall be promptly appropriated for the national tax in arrears, etc. and then paid to the transferee if there is any delinquent amount, and if not appropriated without delay, the transferee shall be deemed to have accrued to the transferee. In determining whether the refund claim has been appropriated without delay, it shall be determined based on the time of transfer where the claim was transferred after the national tax refund claim occurred, and whether the claim was appropriated within the lawful period from the time of occurrence of the national tax refund claim in advance when the refund claim was transferred before the refund claim occurred. However, in this case, the refund claim in this case was transferred before the refund claim occurred, and the notification procedure was made on March 7, 2006 when the National Tax Tribunal decided on March 29, 2006 when the refund claim in this case was transferred before the refund claim in question. Thus, all of the refund claims in this case were appropriated as a national tax refund in this case.

On the other hand, the Plaintiff asserts that the provision of Article 42(2) of the Enforcement Decree of the Framework Act on National Taxes concerning appropriation of refund money provides priority to the State in spite of the nature of the right to claim a return of unjust enrichment, and thus, is unlawful. However, Article 42(2) of the Enforcement Decree of the Framework Act on National Taxes imposes the duty of advance appropriation on the head of the tax office as an internal procedure to secure the right to tax collection by delegation under Article 53 of the Framework Act on National Taxes. However, it cannot be denied that the advance appropriation serves as a restriction on the transfer of refund claims in relation to the taxpayer. However, in comparison with other provisions of the Framework Act on National Taxes that recognize the priority of tax payment based on the public interest interest, etc., the Plaintiff’s above assertion cannot be accepted.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Gangnam-gu (Presiding Judge) Kim Yang-hee Kim Jong-hee