The appropriation for additional dues and additional dues shall not constitute unjust enrichment.

Despite the fact that the appropriation of some of the items appropriated for inheritance tax was illegal and that the appropriation of the part was subsequently illegal, the appropriation of the part which was deemed illegal and that the appropriation of the part which was returned is justified and that the appropriation of the other item is unlawful, and thus, a separate claim for return

2012 Gohap 1676 National Tax Refund

XX

Korea

August 14, 2012

August 30, 2012

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 00 won with 5% interest per annum from January 11, 2012 to the service date of a copy of the application for amendment of the purport of the claim of this case, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

(a) Circumstances and details of the imposition of inheritance tax;

On November 13, 1993, the director of the tax office in Daegu imposed and notified the inheritance tax amount of KRW 000 on August 31, 1996 (hereinafter referred to as the "first disposition") on the part of the co-inheritors, who were the co-inheritors of the Pacific Tax Office on August 1, 1996. The tax amount imposed on the plaintiff at the time was KRW 000, and this was calculated on the premise that the inheritance shares of the plaintiff were 43.26%. The first disposition was made on October 1, 2008 on the premise that the amount of tax imposed on the plaintiff was 00,000 won, and the amount of tax was finally corrected by eight times as stated in the detailed statement of imposition by heir, and finally determined as KRW 00,000,000.

(b) Payment of inheritance tax;

1) The director of the South Daegu District Tax Office collected 000 won in total over 19 times from September 30, 1996 to November 30, 2001, as stated in the details of inheritance tax payment through voluntary payment and delinquent procedure (attached Form 2), and appropriated 000 won in additional dues and 000 won in the principal tax.

2) On March 11, 2002, as indicated in [Attachment 1], the director of the tax office of Daegu made the fourth disposition on March 31, 2002, wherein the inheritance tax amount was increased to 000 won, and the payment deadline was set on March 31, 2002. On April 1, 2002, the day following the payment deadline following the fourth disposition, the Plaintiff did not refund the gift tax refund to the Plaintiff and its additional refund amount to KRW 000 (hereinafter “instant gift tax refund”) and appropriated the refund for inheritance tax pursuant to Article 51(2) of the Framework Act on National Taxes.

3) As a result, the director of the tax office of Daegu collected a total of 000 won as stated in [Attachment 1] as of April 1, 2002, and applied a total of 00 won for additional dues of 000 won and a part of the principal tax (the amount of inheritance tax due to the fourth disposition until that time shall be KRW 000), and the principal tax shall be unpaid, and 00 won shall be left unpaid.

(c) Refund, etc. following a judgment to return unjust gains;

1) On February 25, 2004, the Plaintiff filed a lawsuit against the Defendant, on the ground that the amount equivalent to the Plaintiff’s inheritance shares (57.5%) out of the instant additional dues calculated based on the original payment deadline, was unjust enrichment, on the ground that the Defendant calculated the additional dues based on the original payment deadline, and the amount equivalent to the Plaintiff’s inheritance shares (57.5%) out of the additional dues calculated based on the original payment deadline, became invalid due to the fourth disposition, which was an increase in the additional dues.

2) The court rendered a judgment ordering the payment of KRW 00 and its delay damages, which occurred until September 4, 2007, on the ground that the second disposition constitutes unjust enrichment without any legal ground, on the ground that the additional dues of this case calculated and paid based on the original disposition constituted unjust enrichment for which no legal ground exists. The court rendered a judgment ordering the payment of KRW 400 and its delay damages, which are the sum of KRW 43.26% of the Plaintiff’s inheritance share of KRW 43.26% of the additional dues of this case, and KRW 000 and KRW 43.26% of the additional dues of this case. The above judgment became final and conclusive through the Daegu High Court Decision 2007Na8427, and Supreme Court Decision 2008Da71803 Decided July 4, 2007.

3) On February 21, 2005, the Plaintiff, RCC, RDD, HE, and HF filed a lawsuit seeking refund of money equivalent to the inheritance shares of FF due to the return of unjust enrichment (not including additional dues on refund) of the instant additional charges as the court 2005Gahap2183. In this case, the Plaintiff filed a claim for return of the re- inherited shares due to the death of FB, separate from the lawsuit under the above paragraph (1) of the same Article, as the Plaintiff filed a claim for return of the re- inherited shares. Accordingly, the instant claim concerns the inheritance shares of FB’s successors. The Defendant paid KRW 00 to the Plaintiff, RCC, RD, HD, HE, HE, and HF by the decision made on August 22, 2007 in lieu of the conciliation by the court.

4) Meanwhile, on September 27, 2002, the director of the tax office in Daegu appropriated 000 won for the Plaintiff’s transfer income tax to the Plaintiff (i.e., KRW 000 for inheritance tax + additional refund KRW 000 for refund). Since the 8th disposition following the 8th disposition, a cause for refund occurred as of October 8, 2008 (i.e., reduction of amount, KRW 000 for refund + additional refund KRW 000 for refund).

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 2 through 12 (where there are natural disasters, including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on this safety defense

The Plaintiff asserts that the gift tax refund of this case appropriated for the increased amount of inheritance tax pursuant to the fourth disposition has no effect of appropriation, or that the cause of appropriation has ceased to exist by the eighth disposition, and sought payment of KRW 000 which was not returned until now among the gift tax refund of this case based on the amount of final tax determined pursuant to the eighth disposition, and the additional payment of additional dues therefor.

The defendant asserts that the lawsuit of this case is unlawful since it goes against res judicata of this court 2004Gahap2148 and 2005Gahap2183, and the lawsuit of this case is unlawful as it goes against res judicata of this court 2005Gahap2183, and since 000 won claimed by the plaintiff constitutes unjust enrichment by inheritors other than the plaintiff, the lawsuit of this case is unlawful since there is no eligibility for the plaintiff to seek payment. Therefore, as recognized earlier, the legal relationship established in the lawsuit of this case is invalid as the 4th increase disposition, and the additional dues calculated and collected based on the original disposition become invalid as the 4th increase disposition becomes null and void, and thus it is unlawful to appropriate the refund money of gift tax of this case to the tax amount determined in accordance with the 4th 8th disposition, and thus, it is unlawful to claim the return of unjust enrichment calculated based on the final tax amount finalized in accordance with the 4th 8th disposition, and thus, the plaintiff's assertion that the plaintiff's right to claim performance exists in the plaintiff's right to claim.

3. Judgment on the merits

A. The plaintiff's assertion

1) The director of the Nam Daegu District Tax Office collected a total of KRW 000 won from March 31, 2002, which is the payment deadline for the fourth disposition, and appropriated the total of KRW 000 won for the principal tax and KRW 000 of the instant additional dues, and even though the duty to refund the instant additional dues was incurred due to the fourth disposition as specified below, the director of the Nam Daegu Tax Office, rather than by appropriating the instant refund for the principal tax, made a unjust enrichment of KRW 00,000 by appropriating both the instant refund for the gift tax, and again 00 won for the said KRW 00,000,000, the Defendant is obligated to pay the Plaintiff the amount of KRW 00 (=00 -00) and delay damages.

(2) The following details are omitted:

2) Grounds for unjust enrichment of KRW 000

A) Since additional charges based on the initial disposition will not be created as a result of the fourth increase disposition becomes void due to the invalidation of the original disposition, the director of the tax office in Daegu shall refund not only the additional charges of this case (ii) but also the additional charges of this case to the heir by the same method as the additional charges of this case (ii) to the heir, which is the fourth payment period from the date of collection, until March 31, 2002, which is the fourth payment period from the date of collection.

B) However, as the director of the tax office of Daegu has already refunded the total of KRW 000 (2+4) which is to be refunded to the inheritor, the director of the tax office of Daegu has to refund the remainder of KRW 000 (2+4 - 5) and the refund of the gift tax of this case (3) separately. Nevertheless, the director of the tax office of Daegu has to refund it.

다) 따라서 피고는 상속인들로부터 실제로 징수한 000원(①)과 상속인들에게 환급하지 않고 있는 000원(② + ④ - ⑤ - ⑥), 000원(③) 합계 000원((① + ② + ③ + ④ - ⑤ - ⑥)을 징수한 셈이 되고, 이를 8차 처분에 따른 최종 상속세 000원(⑦)에 충당하면, 남대구세무서장은 000원(① + ②) + ③ + ④ - ⑤ - ⑥ - ⑦)을 초과징수한 결과가 되었다. 여기에 원고는 7차 처분에 따른 환급금 000원(⑧), 8차 처분에 따른 환급금 000원(⑨)을 환급받았으므로, 결국 피고는 나머지 000원(① + ② + ③ + ④ - ⑤ - ⑥ - ⑦ - ⑧ - ⑨)을 법률상 권원 없이 보유하고 있는 결과가 되었다.

D) Furthermore, the above KRW 00 is a KRW 000 when calculating the additional dues for the refund incurred from April 1, 2002 to January 9, 2012 for the above KRW 000. Therefore, the Defendant’s unjust enrichment is KRW 000 (=00 won +00 won).

B. Determination

1) According to the statement in Gap evidence No. 10, the plaintiff claimed the return of the additional dues and additional dues on the premise that the refund money of this case was properly appropriated for the principal tax in the case No. 2004Gahap2148 of this Court, and that the refund money of this case constitutes unjust enrichment without any legal ground. The plaintiff can recognize that the additional dues and additional dues corresponding to the shares in inheritance were returned. Nevertheless, since the additional dues and additional dues are incidental to the inheritance tax in this case, the plaintiff should first be appropriated for the principal tax which is the inheritance tax, and the remaining refund money of this case must be returned to the plaintiff after appropriating the remainder of the inheritance tax. Accordingly, even if the plaintiff received the refund of this part, the appropriation of some of the several items appropriated for the inheritance tax, which is unlawful, is just, and that it is not permitted under the principle of trust and good faith to return them. However, since the plaintiff's assertion that the additional dues and additional dues are more reasonable than the inheritance tax of this case, it still should be appropriated to the plaintiff.

2) The plaintiff's claim of this case is 0G Won (1 + 2 + 4) and 00 won in total (1 + 60% in total) and additional dues for 00 won in 0G Won (1 + 40% in total) were collected by the plaintiff's heir's heir's heir's share of 00G Won (1 + 60% in total). The plaintiff's claim of this case is 00 won in total and 40% in total, 60% in total and 60% in additional dues for the plaintiff's heir's share of 0G Won (40% in total) were collected by the plaintiff's heir's heir's share of 0G Won (20%). The plaintiff's claim of this case is 0 billion won in total and 00% in total, 60% in total and 40% in additional dues for the plaintiff's heir's share of this case (40% in total).

3) 원고는 2012. 6. 7.자 준비서면에서 상속인들은 000원(① + ② + ③ - ⑦)을 초과 납부하였으므로, 피고가 2002. 4. 1. 기준으로 상속인들에게 환급할 돈은 위 돈 000원에다가 이 사건 증여세환급금(③)을 더한 000원(① + ② + ③ + ④ - ⑦)인데, 상속인들은 000원(⑤), 000원(⑥), 000원(⑧ + ⑨)을 이미 환급받았으므로, 피고는 원고에게 나머지 000원(① + ② + ③ + ④ - ⑤ - ⑥ - ⑦ - ⑧ - ⑨)을 반환할 의무가 있다고 주장한다. 한편, 원고는 2012. 8. 10.자 준비서면을 통하여 피고는 000원(① + ② + ④ - ⑦)을 초과 징수하였고, 이 사건 증여세환급급 000원(③) 중 000원(⑧ + ⑨)만 반환하여 아직 000원(③ - ⑧ - ⑨)을 반환하지 않고 있으면서, 7, 8차 처분에 따라 합계 000원(⑤ + ⑥)만 반환하였으므로, 피고는 초과징수한 000원과 아직 반환하지 않은 000원에서 이미 반환한 000원을 공제한 나머지 000원(① + ② + ③ + ④ - ⑤ - ⑥ - ⑦ - ⑧ - ⑨)을 반환할 의무가 있다고 주장한다. 위 주장들은 숫자의 조합에 따라 사뭇 다른 주장인 것처럼 보이지만, 결국에 있어서는 피고가 ① + ② + ③ + ④ - ⑤ - ⑥ - ⑦ - ⑧ -⑨에 해당하는 부당이득을 취하고 있다는 것이므로, 주장의 기교만 달리 할 뿐 앞서의 주장과 다를 바 없다. 따라서 원고의 위 주장에 관하여는 따로 판단하지 않는다.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.