Where a taxpayer files a revised return for reduction on the grounds that the taxpayer has omitted or omitted tax base or tax amount, whether the revised return alone may claim a refund of the tax amount equivalent to the difference by civil procedure (negative)

If a person liable for duty payment finds an omission or error in the tax base and tax amount already reported and the amount of tax payable or the amount of tax refundable, and then files a revised return on the tax base, etc. within six months after the statutory period of return expires, the revised return alone does not bring about a change in the tax liability due to the original return or the right to claim refund, but the tax authority should accept the revised return and determine the tax base, etc., and at the same time the tax authority should determine the amount of tax liability, etc. arising therefrom. In such cases, if the tax authority refuses the revised return, the person liable for duty payment can only determine the amount of tax liability due to the revised return after receiving the disposition of refusal in accordance with the procedure of administrative litigation.

Article 741 of the Civil Act; Articles 51 and 45 of the former Framework Act on National Taxes (Amended by Act No. 4810, Dec. 22, 1994); Articles 17, 18, 19, and 24 of the Value-Added Tax Act

Supreme Court Decision 94Nu8471 delivered on January 12, 1995 (Gong1995Sang, 924 delivered on April 12, 1996) Supreme Court Decision 94Da3405 delivered on April 12, 1996 (Gong196Sang, 1489) Decided 95Da4063 delivered on September 6, 1996 (Gong196Ha, 2964)

Yongsan Development Co., Ltd. (Attorney Lee Jong-soo, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 96Na16140 delivered on August 29, 1996

The judgment of the court of first instance is reversed, and the judgment of the court of first instance is revoked. The litigation costs are assessed against the plaintiff.

The defendant's second ground for appeal is examined.

1. As for value-added taxes taking the method of filing a return, the existence and scope of the tax payable or refundable amount are determined by the final return of the taxpayer or the determination of the tax authority, in such a case, the taxpayer may seek the return of refundable tax already determined in a civil lawsuit against the State in accordance with the legal principles for return of unjust enrichment. However, in a case where the taxpayer finds any omission or error in the tax base and tax payable or refundable amount, and then files a revised return on the tax base, etc. within six months after the statutory period expires, the revised return alone does not bring about any change in the tax liability or claim for refund due to the initial return, but the tax authority shall accept the revised return and determine the tax base, etc., and the tax liability becomes final and conclusive. In such a case, if the tax authority refuses the correction following the revised return, the taxpayer may only confirm the tax liability due to the revised return after receiving the disposition of refusal in accordance with the procedure of administrative litigation, and thus, the party member cannot immediately claim the return of refundable tax against the State (see Supreme Court Decision 94Da3054, Apr. 12, 19996).

According to the records, the plaintiff filed a revised return on October 25, 1992, stating that the preliminary return of value-added tax for the second preliminary return period portion of 192, which was non-deduction of the input tax amount, was later found to have been wrong and that the amount of the tax refund was 318,057,272 won on March 2, 1993, and that the revised return was filed within 318,057,272 won. However, the above revised return was filed within 3 months after the expiration of the period for the revised return (6 months after the expiration of the period for the preliminary return). However, the revised return is a kind of revised return, which brings about an increase of the amount of the tax refund, and if the tax authority refuses to correct the above reported return as determined by the court below, the plaintiff's right to claim the refund and its scope have not yet become final and conclusive. Thus, in order for the plaintiff to pay the amount as alleged above, the plaintiff's decision of rejection should not be asserted as a civil suit.

Nevertheless, the judgment of the court below which accepted the Plaintiff’s claim cannot be deemed to have committed an unlawful act that adversely affected the judgment by misunderstanding the legal principles on the confirmation of the claim for refund of value-added tax.

2. Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the decision of the court of first instance that judged on the merits of this case is also unlawful, and thus, it is obvious that the judgment of the court of first instance is revoked, and the lawsuit of this case is dismissed for the above reasons, and the total costs of the lawsuit are to be borne by the losing party. It is so

Justices Song Jin-hun (Presiding Justice)