applicable to the tax amount in arrears to be paid by succession at the time of appropriation.

As the director of the tax office can appropriate other national taxes, additional dues, or disposition fee for arrears to be paid by the transferor as of the time of appropriation, it constitutes the tax amount in arrears to be paid by succession as of the time of appropriation, and thus can be appropriated for the national tax refund and

2012 Gohap 53281 Amount of acquisition by transfer

XX Stock Company

Korea

December 21, 2012

January 15, 2013

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 September 12, 2012 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. XX Co., Ltd. (hereinafter referred to as "non-party company") is the implementer of the newly-built project in Suwon-gu, Suwon-si, Y 324-4 in Suwon-si (hereinafter referred to as "the project of this case"), and the O Construction Co., Ltd. (hereinafter referred to as "OO Construction") is the contractor of the aforementioned newly-built project, and the plaintiff is a trust company entrusted with the above new livestock project site and apartment.

B. On March 24, 2011, Nonparty Company: (a) changed the name of the operator of the instant project to the Plaintiff; and (b) drafted a written agreement on the transfer of all the claims for refund of value-added tax arising in relation to the instant project to the Plaintiff.

C. On April 4, 2012, Nonparty Company submitted a request for transfer of national tax refund to the Plaintiff with the content that it transfers 000 won of the value-added tax refund for the first quarter of 2012 to the head of the Suwon Tax Office (hereinafter referred to as the “head of the Suwon Tax Office”).

D. On July 25, 2012, Nonparty Company reported to the head of Suwon Tax Office the refund amount to KRW 000 (hereinafter “instant national tax refund”). On July 26, 2012, Nonparty Company submitted to the head of Suwon Tax Office the request for transfer of the national tax refund of this case to the Plaintiff.

E. On July 31, 2012, Nonparty Company merged YY Co., Ltd. (hereinafter referred to as “YY”), and completed the registration of the merger on August 3, 2012, Nonparty Company succeeded to the YY’s arrears tax amount of KRW 000 in arrears at the time of the merger (hereinafter referred to as “instant arrears tax”).

F. On August 27, 2012, the head of the Suwon Tax Office, upon appropriating the instant refund of national tax in the instant case to cover the delinquent taxes (hereinafter “the instant appropriation”), sent a notice of appropriation for national tax refund to the non-party company on September 11, 2012, and on September 11, 2012, paid 00 won of the remainder remaining after appropriating it to the Plaintiff as above.

[Reasons for Recognition]

Facts without dispute, Gap 1 through 5 (including each number in the case of a tentative number), each entry in Eul 1 through 4, and the purport of the whole pleadings.

2. Relevant statutes;

Basic Act

Article 51 (Appropriation and Refund of National Tax Refund)

(1) Where a taxpayer erroneously pays or overpaid national taxes, surcharges or expenses for disposition on default, or where there is any amount of tax to be refunded under tax-related Acts (where any amount of tax to be deducted from the amount of tax refundable under tax-related Acts exists, referring to the remaining amount after deduction), the head of a tax office shall immediately determine such erroneously paid, overpaid amount or refundable amount as a refund of national taxes. In such cases, any claim for refund due to erroneous or double payment shall

(2) The head of a tax office shall appropriate the amount determined by the national tax refund for the following national taxes, additional dues, or disposition fee for arrears, as prescribed by Presidential Decree: Provided, That the appropriation for the national taxes under subparagraphs 1 (excluding cases falling under reasons for collection prior to the due date of tax payment under Article 14 of the National Tax Collection Act) and 3

1. National taxes paid by a duty payment notice;

2. National taxes, additional dues and disposition fees for arrears (including national taxes, additional dues and disposition fees for arrears in other tax offices);

3. National taxes voluntarily paid under tax-related Acts;

Article 53 (Transfer of Rights to National Tax Refund)

A taxpayer may transfer to another person the rights to the national tax refund, as prescribed by Presidential Decree.

Enforcement Decree of the Framework Act

Article 43-4 (Transfer of National Tax Refund)

(1) A taxpayer who intends to transfer the rights to the national tax refund to another person under Article 53 of the Act shall request the head of the competent tax office to transfer a document stating the following matters before the tax secretary issues the notice of national tax refund:

1. The name and address of the transferor;

2. The name and address of the assignee;

3. Details of the rights to be transferred.

(2) Where the transferor makes a request under paragraph (1), if there are other national taxes, additional dues or disposition fees for arrears to be paid, the head of a tax office shall appropriate them for the national taxes, additional dues or disposition fees for arrears, and

Value-Added Tax Act

Article 24 (Refund)

(1) The head of a tax office having jurisdiction over the place of business shall refund the refundable tax for each taxable period to the business operator, as prescribed by Presidential Decree.

Enforcement Decree of the Value-Added Tax Act

Article 72 (Refund)

(1) The amount of tax to be refunded under Article 24 (1) of the Act shall be refunded to the relevant business entity within 30 days (within 15 days in cases of Article 24 (2) of the Act) after the expiration of the period of final return by each taxable period.

3. The plaintiff's assertion

A. Before Nonparty Company’s merger and succession to the instant delinquent tax amount by absorbing Y, Nonparty Company had already transferred the instant national tax refund claim to the Plaintiff and notified the head of Suwon Tax Office of transfer, the Defendant cannot appropriate the instant delinquent tax amount by the national tax refund of this case, which occurred after the notice of transfer.

B. Even if the Defendant could appropriate the tax amount in arrears of the non-party company that occurred after receiving the request for transfer of the national tax refund by the national tax refund, the Defendant should promptly appropriate the national tax refund for the tax amount in arrears and pay the remaining amount to the transferee after appropriating it to the tax amount in arrears. The Defendant cannot be deemed to have immediately appropriated the instant appropriation as the national tax refund for the tax amount in arrears on August 27, 2012, where the tax refund claim in this case became final and conclusive from July 25, 2012, and 33 days have passed without

C. Therefore, the Defendant is liable to pay 000 won and damages for delay corresponding to the instant arrears tax amount, since it appropriated the instant tax refund to the Plaintiff as the national tax refund and paid only the remainder of the national tax refund.

4. Determination

A. First of all, whether the transferor's delinquent taxes incurred after the transferor transferred the national tax refund to the transferee cannot be appropriated by the national tax refund; ② If the transferor satisfies the requirements for setting up against the transferor such as notification of transfer by the obligee or consent of the obligor, the obligor cannot set up against the assignee. However, in the case of the national tax refund claims, the obligation of prior appropriation to the director of the tax office is an internal procedure for the benefit of securing the obligee's right to appropriation; and such prior appropriation obligation acts as restriction on the transfer of the refund claims in the relationship with the taxpayer. If the transferor satisfies the requirements for setting up against the obligor or the third party, the transferee may have the opposing power in the relationship with the obligor or the third party. However, if the refund claims are transferred, the tax office may have the priority in the superior position after the transfer and the right to appropriate the delinquent taxes of the transferor to the Plaintiff at the time of the transfer; ② Article 35 of the Framework Act on National Taxes and Article 99 of the Framework Act on Local Taxes to appropriate the national tax, local tax, additional dues, and disposition fees to be appropriated without delay.

B. Next, when comprehensively considering the health expenses, Articles 51 and 53 of the Framework Act on National Taxes, and Article 43-4 of the Enforcement Decree of the same Act as to whether the Defendant’s instant appropriation was made without delay, the taxpayer shall notify the tax payer of a document stating the name and address of the transferor and transferee after transferring the national tax refund claim to another person, and the content of the right to transfer, and if the taxpayer requests a transfer, the head of the tax office shall investigate and confirm whether the transferor has other delinquent national taxes, etc. to be paid, and if there is any amount of national taxes in arrears, he/she shall first appropriate the delinquent national taxes, etc. and pay it to the transferee. If the transferee fails to appropriate it without delay even if he/she received legitimate request from the taxpayer for a transfer from the transferor, the transferee’s claim for national tax refund shall become final and conclusive, and even if the latter is appropriated for the national taxes in arrears, it shall be deemed that such appropriation would become effective in the future as a result of collecting the tax claim for the property not owned by the transferor without delay.

Meanwhile, according to the provisions of Article 51(1) of the Framework Act on National Taxes, the head of a tax office must immediately determine the amount of erroneous payment, excess payment, or refund as a national tax refund, among the amount paid by a taxpayer as a national tax, additional dues, or disposition fee for arrears. Here, the amount of erroneous payment refers to the amount of tax paid or collected, regardless of the absence of a return (in the case of a return of tax payment) or an imposition disposition (in the case of a imposition of a tax), which serves as the basis of the payment or collection, or of the deferred tax, and the amount of excess payment means the amount of tax reduced in whole or in part as a result of revocation or correction. The amount of refundable tax is lawfully paid or collected, but the amount of taxes determined to be refunded under each tax law because the State did not have a legitimate ground. Thus, all the amount of erroneous payment, excess payment, and refund are deemed to constitute unjust enrichment received or held by the State without legal grounds, even if there is no legal ground from the beginning or the amount of refundable tax to a taxpayer seeking the return of unjust enrichment becomes final and conclusive by 197.

In the instant case, the non-party company filed a final return on July 25, 2012 with the head of the Suwon Tax Office for the first time value-added tax return for the year 2012, and submitted a request for transfer of national tax refund to the head of the Suwon Tax Office on July 26, 2012 to the Plaintiff, as seen earlier. As such, the claim for transfer of the national tax refund of the instant case was finalized on July 25, 2012, and the head of the Suwon Tax Office received the request for transfer of the instant national tax refund claim on July 26, 2012. The head of the tax office received the request for transfer of value-added tax return and its accompanying documents to determine the amount of value-added tax to be refunded under Article 72(4) of the Enforcement Decree of the Value-Added Tax Act without delay from 20 days to 30 days from the expiration date of the tax base return on July 26, 2012 to 20 days from 20 days from the expiration date of the final return period of value-added tax.

5. Conclusion

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