Claim for Return of Unjust Enrichment

It should be viewed as a confirmative provision that the right to claim the refund of value-added tax on the amount of tax overpaid or erroneously paid by the purchaser is attributed to the purchaser in accordance with the special case of the purchaser payment.

National Tax refund under Article 51(1) of the Framework Act on National Taxes

2017 Gohap54565 Undue gains

gender00

Korea

2018.04.13

2018.07.25

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

The defendant shall pay to the plaintiff 1,146,08,456 won with 5% interest per annum from August 15, 2017 to the delivery date of a copy of the claim of this case and the application for modification of the cause of the claim of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. Plaintiff’s return of value-added tax

1) From January 12, 2016 to December 31, 2016, the Plaintiff issued sales tax invoices against the SS Industry, etc. (hereinafter referred to as “SS Industry, etc.”) which is the purchaser of copper scrap, etc., and filed a return on the following tax invoices for the first period (from January 12, 2016 to June 30, 2016) and second period (from January 12, 2016 to December 31, 2016) in the value-added tax period, the Plaintiff was an individual entrepreneur who has engaged in the wholesale and retail business of scrap and non-ferrous metals with the trade name “KSAS industry, etc.” (hereinafter referred to as “the first tax invoice for the year 2016, which was the basis of the said return”), as the second tax invoice for the year 2016 and the second tax invoice for the second year (hereinafter referred to as “the second tax invoice for the second year 2016”).

2) The SS industry, etc. set forth in Article 106-9(3) of the Restriction of Special Taxation Act

Pursuant to the special case of payment by the purchaser of the provisional value-added tax (hereinafter referred to as the "special case of this case"), the value-added tax on the output tax amount stated in the tax invoice No. 1 was deposited in each of the management accounts of the Plaintiff established in the name of the Plaintiff in the name of GG Bank, with the aggregate of KRW 574,694,870 on April 25, 2016, as the value-added tax on the output tax amount stated in the tax invoice No. 1, and KRW 842,580 on July 25, 2016, as the value-added tax on the output tax amount stated in the tax invoice No. 2, and KRW 464,735,590 on October 25, 2016, and KRW 37,845,130 on January 25, 2017 (hereinafter collectively referred to as the "value-added tax").

(b) Tax investigation, etc. on the 1st value-added tax in 2016;

1) As a result of conducting a tax investigation on value-added tax for the Plaintiff from August 26, 2016 to November 30, 2016, the commissioner of the Regional Tax Office confirmed that the Plaintiff issued a false tax invoice without real transaction during the first taxable period of 2016, and notified the FF director of the Regional Tax Office of this fact.

2) On December 1, 2016, the head of the FF Tax Office, on the ground that the tax invoice No. 1 constituted a false tax invoice for processed transactions, issued a decision to revise the value-added tax assessment standard for the first half of 2016 to reduce the amount of KRW 5,772,495,950 to KRW 0, and to impose KRW 115,449,910 on the Plaintiff, and notified the Plaintiff of the decision. The already paid value-added tax was not refunded on the ground that the Plaintiff was the data.

3) On December 21, 2016, the Plaintiff filed a request for rectification to the effect that the first value-added tax amount that was already paid to the head of FF Tax Office was deducted from the above unfaithful penalty tax amount, and the remainder of 461,79,676 won was deducted from the above unfaithful penalty tax amount, but the head of FF Tax Office rejected the request on December 30, 2016 on the grounds that the value-added tax declared and paid by the Plaintiff, an actor, cannot be refunded on the data.

4) On December 30, 2016, the Plaintiff filed an appeal seeking revocation of the above rejection disposition with the Tax Tribunal. On May 17, 2017, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s appeal (the first instance court 2017 medium526).

(c) Tax investigation, etc. of value-added tax for the second period of value-added tax, 2016;

1) The commissioner of the regional regional tax office of DD shall grant the Plaintiff from March 16, 2017 to May 10, 2017, 2016

As a result of conducting a tax investigation on the value-added tax for the second taxable period of 2016, the plaintiff confirmed that the second tax invoice was issued without real transactions during the second taxable period of 2016, and notified this fact to the head of FF Tax Office.

2) On June 14, 2017, on the ground that the tax invoice No. 2 constituted a false tax invoice under a processing transaction, the head of the FF Tax Office re-determination of the value-added tax, which imposed KRW 169,548,60 on the Plaintiff for the amount of KRW 8,475,337,100, to reduce the tax base of the second-stage value-added tax in 2016, and notified the Plaintiff of the re-determination of the value-added tax imposing KRW 169,548,60 on the part of the Plaintiff

3) On July 7, 2017, the Plaintiff claimed that the Tax Tribunal should deduct the already paid tax amount of KRW 842,580,720 from the tax amount payable by the Plaintiff, and sought revocation of the re-determination. However, on October 24, 2017, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s request for adjudication (the first instance court 2017 middle 3538).

(d) Relevant statutes;

The statutes related to the instant case shall be as shown in the attached Form.

[Reasons for Recognition] Facts without dispute, Gap 1 to 13 evidence, Eul 1, 2 and 4 evidence (including each number), the purport of the whole pleadings

2. Determination as to the cause of action

A. The parties' assertion

1) The plaintiff's assertion

A) Even if SS industry, etc. paid the value-added tax of this case in accordance with the special provisions of this case, the Plaintiff is deemed to have paid the value-added tax as a taxpayer of the value-added tax of this case. As long as the tax invoice Nos. 1 and 2 was written in a false tax invoice and the disposition of imposition of the value-added tax of this case becomes null and void, the value-added tax of this case constitutes the tax amount that the Plaintiff paid without any legal cause. Thus, the value-added tax of this case constitutes the amount of tax that the Plaintiff paid to the Defendant, and thus, constitutes the amount of tax that the Plaintiff constituted the amount of tax that was paid without any legal cause, 1,132,102,65 won (=1,417,275,590 - 132,550 won - 285,040 won - 13,985,801 won for additional dues, 1

B) In cases where a taxpayer erroneously paid or overpaid value-added tax, Article 51(1) of the Framework Act on National Taxes, despite the ownership of the right to claim the repayment of the right to claim the refund of value-added tax, Article 106-9(11) of the Restriction of Special Taxation Act (amended by Act No. 15227, Dec. 19, 2017; hereinafter referred to as “instant amended provisions”) and Article 32(2) of the Addenda of the same Act (hereinafter referred to as “the instant amended provisions”) of the same Act provide that a person who is supplied with the portion paid or overpaid before the aforementioned Act enters into force shall be granted a refund to the purchaser (purchase) who is a property right of the taxpayer. Accordingly, the instant amended provisions violate the people’s property rights under Article 23(1) of the Constitution, and are unconstitutional and void as they violate the principle of retroactive prohibition of legislation under Article 13(2) of the Constitution.

2) The defendant's assertion

Since the value-added tax of this case was paid by the SS industry, etc. in accordance with the special provisions of this case, the right to claim the refund of the value-added tax of this case belongs to the SS industry, etc.

B. Determination

1) The main text of Article 51(1) of the Framework Act on National Taxes provides that “When a taxpayer has erroneously paid or overpaid the amount that the taxpayer has already paid as a national tax, additional dues, or disposition fee for arrears, or there is a tax refund that should be refunded under the tax-related Acts, the head of a tax office shall immediately determine such erroneous amount, excess amount, or refundable amount as a refund of national tax.” In addition, Article 51(1) of the Framework Act on National Taxes declares the legal doctrine that in a case where there has already been erroneous payment, the existence and scope of which have already been determined as unjust enrichment, the State’s immediate return without waiting for a taxpayer’s application for refund. As such, the amount of erroneous payment, the existence and scope of which have already been determined, may be claimed by a taxpayer as a civil lawsuit seeking a return of unjust enrichment (see, e.g., Supreme Court Decision 2013Da21

In this case, a tax invoice No. 1 and No. 2, which served as the basis for the collection of the value-added tax of this case

As the future act is confirmed falsely, the defendant's legal ground to hold the value-added tax of this case has ceased to exist. Thus, it is examined whether the right to claim the refund of the value-added tax of this case to which the special provisions of this case apply

2) Whether the Plaintiff is the person entitled to claim the refund of the value-added tax of this case

The main sentence of Article 51(1) of the Framework Act on National Taxes provides, “Where a taxpayer has erroneously paid or overpaid the amount of national tax, additional dues or disposition fees for arrears, or there is any refund amount to be refunded under tax-related Acts, the head of a tax office shall immediately determine such erroneously paid, overpaid amount or refundable amount as a refund of national tax.”

Meanwhile, according to Articles 51(6) and 2(10) of the Framework Act on National Taxes, the Defendant is obligated to pay the amount remaining after appropriation of national taxes overpaid or erroneously paid to taxpayers, and the taxpayer is obligated to collect and pay national taxes under the tax-related Acts. However, in the case of value-added tax, the person liable to pay taxes is the supplier of goods or services, and thus, the person liable to claim repayment under Article 51 of the Framework Act on National Taxes is also the supplier of goods or services.

However, in light of the purport and specific contents of the special provisions of this case, if the person who is supplied with scrap scrap, etc. under the special provisions of this case constitutes erroneous or erroneously paid tax amount, it is reasonable to view that the claim for refund of value-added tax belongs to the purchaser who is not the supplier (the purchaser) but the other party to the transaction. ① The person liable for the payment of value-added tax is the supplier of the goods or services under the special provisions of Article 3 subparag. 1 and subparag. 2 subparag. 3 of the Value-Added Tax Act (Article 31 of the Value-Added Tax Act). The amount of tax payable by the supplier is calculated by deducting the input tax amount from the output tax amount, etc. (Article 37 of the Value-Added Tax Act, and the tax amount to be paid by the supplier of scrap scrap, etc. is also subject to the special provisions of the former Restriction of Special Taxation Act for the purpose of purchasing the goods or services instead of the supplier of scrap scrap, etc.

(4) On the other hand, Article 106-9 (5) of the Restriction of Special Taxation Act provides that the purchaser shall be deemed to have fulfilled his/her obligations to refund value-added taxes in excess of the amount calculated by multiplying the period from the date of receipt of scrap, etc. to the date of deposit by the Presidential Decree (Article 106-9 (1) of the former Restriction of Special Taxation Act). Therefore, it is reasonable to view that the purchaser would have paid value-added taxes by mistake to the purchaser and the defendant under the special tax law established by the former Restriction of Special Taxation Act. It is difficult to view that the purchaser would have fulfilled his/her obligations to refund value-added taxes in excess of the amount of taxes under Article 10-1 of the former Restriction of Special Taxation Act, which is the first purchaser and the defendant's first purchaser of scrap, etc. (Article 2-9 of the former Restriction of Special Taxation Act, which is the first purchaser and the second purchaser of scrap, etc.). However, it is difficult to view that the latter would be liable to pay value-added taxes in excess of the amount of taxes.

3) The assertion that the amendment provisions of this case are unconstitutional

In light of the purport and specific contents of the special provisions of this case as seen earlier, the amended provisions of this case should be deemed as a confirmative provision clarifying the legal doctrine that the claim for repayment of overpaid or erroneously paid tax amount belongs to the purchaser according to the special cases for purchase by the purchaser. Therefore, it cannot be said that the amended provisions of this case infringe on the property rights of the people provided by Article 23(1) of the Constitution or violate the principle of prohibition of retroactive legislation provided by Article 13(2) of the Constitution.

4) Sub-committee

Since the Plaintiff is not the right to claim the refund of the value-added tax of this case, the Plaintiff’s claim of this case on a different premise is without merit without any need to further examine it.

3. Conclusion

The Plaintiff’s claim against the Defendant in this case is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.