The subsequent disposition of this case is null and void because it conflicts with the binding force of the decision of this case.

Unlike the purport of the decision of this case, the defendant's subsequent disposition of this case, which is maintained without correcting the tax base and tax amount of the original disposition of this case on the ground that there is no evidence about necessary expenses, is unlawful as it goes against the binding force of the decision of this case, and its defect is serious and obvious and null and void.

Article 80 of the Framework Act on National Taxes

2017Gaz. 556363 Unjust Enrichment

a

AA

May 18, 2018

June 22, 2018

1. The defendant: 4% per annum from September 1, 2012 to February 28, 2013; 3.4% per annum from March 1, 2013 to March 13, 2014; 2.9% per annum from March 14, 2014 to March 5, 2015; 2.5% per annum from March 6, 2015 to March 6, 2016; 1.8% per annum from March 7, 2016 to March 14, 2017; 1.5% per annum from the following day to May 17, 2018; and 1.5% per annum from the date of repayment to May 15, 2017.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. From January 6, 2006, the Plaintiff is engaged in real estate brokerage and consulting business under the trade name, i.e., bb licensed real estate agents, from 14, 114-Do, Gangnam-gu, Seoul, for the first floor, and from March 26, 2010 to February 27, 2012, the Plaintiff engaged in real estate brokerage and consulting business under the trade name, i.e., c and d joint names from the second floor of the same building from March 26, 2010 to c and d.

(b) Corrective disposition of global income tax following the integrated investigation of individual taxes;

1) The director of the Seoul Regional Tax Office, under the Defendant’s control, notified the director of the Samsung Tax Office in c/d-200 and 201 to add the amount of income in c/d-201 to the Plaintiff’s global income, on the ground that the Plaintiff constitutes an actual business operator who is engaged in business in the name of e consulting lending the name of c/d- e consulting.

2) On August 16, 2012, the head of Samsung District Tax Office issued a notice of correction and notification of the Plaintiff on August 16, 2012, x won for global income tax for 2010 and x won for 2011 (hereinafter “instant original disposition”).

(c) Decision of the Tax Tribunal;

1) On November 12, 2012, the Plaintiff dissatisfied with the original disposition in the instant case and filed a request for a trial with the Tax Tribunal.

2) On September 10, 2013, the Tax Tribunal rendered a decision that "the original disposition in this case was inappropriate to add the amount of income not c and D income to the amount of the plaintiff's income in the original disposition in this case, "the amount of the original disposition in this case shall be corrected by adding the amount of income belonging to c and d 2010 and 201 to the amount of the plaintiff's income in c and d 201 (hereinafter "the decision in this case")."

3) On September 23, 2013, the Director of the Seoul Regional Tax Office rendered a disposition of imposition that maintains the original disposition of this case against the Plaintiff (hereinafter “instant subsequent disposition”).

D. Meanwhile, on August 31, 2012, the Plaintiff paid the x members imposed pursuant to the instant original disposition.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 3 (including evidence with serial number), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

According to the instant judgment decision, the Defendant, without any justifiable reason, made a follow-up disposition of this case with the same content as the previous disposition of this case, even though only the income amount which deducts necessary expenses under the simple expense rate from the income amount of c and d, should be revised by adding up the Plaintiff’s income amount. The subsequent disposition of this case is in conflict with the binding force of the instant judgment, and its defect is serious and obvious and thus is null and void as it is reasonable. Accordingly, the Defendant must return the x won paid by the Plaintiff

B. Defendant’s assertion

1) At the time of the original disposition, the Defendant calculated the Plaintiff’s income amount, not c and d, by adding up the tax base and tax amount to the Plaintiff’s income amount at the time of the original disposition, and subsequently conducted the follow-up disposition to the effect that the original disposition in this case was maintained as a result of a review after the determination of the instant judgment, and thus,

2) When the Tax Tribunal determines the amount of income by means of estimation pursuant to Article 143 of the Enforcement Decree of the Income Tax Act, it shall include the phrase “in calculating the amount of income pursuant to Article 143 of the Enforcement Decree of the Income Tax Act to correct the tax base and the amount of tax,” and there is no such phrase in the text of the decision of the instant case, and the purport of the decision of the instant case is to aggregate income after deducting necessary expenses confirmed based on evidence from the amount of income. However, in the case of necessary expenses belonging to year 2010, there was no separate evidence inasmuch as the Plaintiff reported the amount by applying the simple expense rate. However, in the case of necessary expenses belonging to year 201, the Plaintiff reported the amount by applying the simple expense rate

3) The instant decision of trial is not a decision of revocation, and it is not recognized as binding such as the effect of repeated prohibition. Even if the follow-up disposition of this case conflicts with the binding force of the instant decision of trial, the degree of the defect is merely the cause of revocation.

4) Even if the follow-up disposition of this case is deemed null and void as a matter of course, the plaintiff is not required to be subject to double-entry bookkeeping, and since the plaintiff is subject to double-entry bookkeeping, necessary expenses cannot be estimated by applying simple expense rates. Therefore, evidence should be prepared in accordance with the principle of base taxation in order

3. Determination

A. Relevant legal principles

Article 81 of the former Framework Act on National Taxes (amended by Act No. 14382, Dec. 20, 2016) provides that Article 65 concerning a request for a review shall apply mutatis mutandis to a request for a trial. Article 80(1) and (2) provides that Article 65 concerning the validity of a decision on a request for a trial shall be binding upon the relevant administrative agency, and where a decision on a request for a trial is made, the relevant administrative agency shall take necessary measures immediately according to the purport of the decision. Article 65(1)3 provides that when a request for a trial is deemed reasonable, a decision on cancellation or correction of the disposition that became the object of the request for a trial or a decision on necessary disposition shall be made. In cases where a ground for objection is recognized as justifiable in the procedure of a request for a trial and necessary measures are taken accordingly, the previous disposition shall not be reversed without any special reason and the previous disposition may not be renewed (see Supreme Court Decision 2016Du4999, Oct. 27, 2016).

Article 80(3) of the Income Tax Act and Article 143(1) of the Enforcement Decree of the same Act provide that when there is no necessary account books and documentary evidence in calculating the tax base, the amount of income may be estimated and determined if there is no necessary account books and documentary evidence. In addition, in cases where necessary expenses are apparent in light of the empirical rule, deeming necessary expenses as zero because there is no evidence or insufficient evidence of the taxpayer is contrary to the empirical rule. As such, in cases where the tax authority cannot conduct a field investigation, the tax authority bears the burden of proving the amount to the extent that it can be calculated by the method of the estimated investigation, and if the taxpayer claims necessary expenses more than this, the taxpayer needs to prove it (see, e.g., Supreme Court Decision 91Nu

B. Occurrence of claim for restitution of unjust enrichment

1) The following facts are acknowledged in light of the purport of the entire pleadings in the statement Nos. 1 and 2 as a whole.

A) The Plaintiff asserted that, in the judgment of the Tax Tribunal on the original disposition of this case, the Plaintiff imposed taxes by adding up all revenues without considering any necessary expenses, even though the amount of income calculated by deducting the necessary expenses determined by estimation from the amount of income generated in the pertinent taxable period, if the Plaintiff and C, D are different from the other Plaintiff and each business place providing separate services, and there is no account books and other evidence.

B) In Article 4 of the Income Tax Act and Article 65 of the Enforcement Rule of the same Act, the Tax Tribunal rendered the instant judgment on the ground that the disposition authority imposed global income on the Plaintiff on the grounds that the disposition authority does not add up the amount of income generated in both c and d, a joint business proprietor, and the total amount of income generated, on the Plaintiff.

C) However, the Defendant, after re-audit after the instant judgment, did not prove necessary expenses in the case of 2010, received the entire amount of income. In the case of 2011, there is no evidence regarding necessary expenses other than the withheld amount. Therefore, the amount of income less the above withheld amount is income. Accordingly, the instant original disposition was rendered subsequent disposition that maintained the instant original disposition by deeming that the amount of c and d income was aggregated with that of the Plaintiff’s income.

2) According to the above facts, the purpose of the instant judgment is to calculate the amount of income calculated by deducting necessary expenses from the amount of income in C and D and to add it to the Plaintiff’s income amount. Unless there is an indication that the method of calculating necessary expenses should be based on on on on the on-site investigation or the method of estimation is excluded from the method of calculating necessary expenses in the order and reason thereof, the Defendant should have corrected the tax base and tax amount of global income tax by calculating necessary expenses from the place of business engaged in e consulting in accordance with the purpose of the determination through the investigation of account books and other documentary evidence, or by calculating necessary account books and documentary evidence, if there is no necessary account books and documentary evidence in the calculation thereof.

The fact that the Plaintiff returned the comprehensive income tax of c and D by applying the simple expense rate is not a dispute between the parties. Therefore, in this case, since there is no account or documentary evidence necessary for calculating necessary expenses, it is deemed that there exists an estimate under Article 143(1) of the Enforcement Decree of the Income Tax Act, since the Plaintiff falls under the person subject to double-entry bookkeeping and is able to estimate the expense rate if it is not the person subject to double-entry bookkeeping, the Defendant’s assertion that the method of estimate cannot be applied because the Plaintiff did not have an estimate

However, the Defendant’s subsequent disposition, which was maintained without correcting the tax base and tax amount of the original disposition of this case on the ground that there was no evidence about necessary expenses unlike the purport of the decision of this case, is invalid as it goes against the binding force of the decision of this case, and its defect is serious and clear in light of the circumstances and contents of the subsequent disposition of this case.

C. Scope of return of unjust enrichment

In the event that a taxation disposition is unlawful, the court is bound to revoke the entire taxation disposition, and the court is not obligated to calculate the legitimate tax amount (see, e.g., Supreme Court Decision 86Nu578, Feb. 24, 1987). Therefore, the unjust enrichment to be returned by the defendant to the defendant is the x won paid by the plaintiff.

Meanwhile, according to Article 52 of the former Framework Act on National Taxes (Amended by Presidential Decree No. 2010, Dec. 19, 2017); Article 43-3 of the Enforcement Decree of the same Act (Amended by Presidential Decree No. 2420, Feb. 23, 2013; Presidential Decree No. 2690, Mar. 14, 2014; Presidential Decree No. 2718, Mar. 6, 2015; Presidential Decree No. 2717, Mar. 7, 2016; Presidential Decree No. 2420, Mar. 15, 2017; Presidential Decree No. 2417, Feb. 28, 2013; Presidential Decree No. 24475, Mar. 14, 2013; Presidential Decree No. 25075, Mar. 16, 2014>

Therefore, the Defendant, as unjust enrichment, has an obligation to pay to the Plaintiff x members and the Plaintiff 4% per annum from September 1, 2012 to February 28, 2013, from March 1, 2013 to March 13, 2014, 2.9% per annum from March 14, 2014 to March 5, 2015; 2.5% per annum from March 6, 2015 to March 6, 2016; and 1.8% per annum from March 7, 2016 to March 14, 2017; and 1.5% per annum from March 15, 2017 to May 16, 2018; and 1.5% per annum from the date of filing a claim to the Plaintiff.

4. Conclusion

The plaintiff's claim is justified, and it is so decided as per Disposition.