In order for taxation to become void as a matter of course, there must be a significant and objective defect in the disposition.

If there is no taxation disposition or a deferred invalidity, the amount paid or collected by the taxpayer due to the taxation disposition constitutes unjust enrichment obtained by the State without legal grounds. However, in order for the taxation disposition to be null and void as a matter of course, there must be significant and objective defects.

Article 11 of the Punishment of Tax Evaders Act

2014dada 43943 Return of Fraudulent Gains

Fixed00

Korea

June 9, 2015

June 30, 2015

1. The plaintiff's claim is dismissed.

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

The defendant shall serve 42,131,660 won on the plaintiff and a copy of the complaint of this case shall be served on the plaintiff.

The rate of 20% per annum shall be paid from the day of full payment.

1. Basic facts

A. Business registration was completed in the Plaintiff’s name as the “business period” from March 13, 2012 to October 31, 2012, the trade name of 00 tex, Seoul 00-Gu 002 Dong, and the type of clothing manufacturing business (hereinafter “instant business”).

B. On September 4, 2012, the head of Dongdaemun-gu Tax Office, who did not pay value-added tax on the instant business establishment, imposed and notified the Plaintiff of KRW 1,174,210, respectively (hereinafter “instant disposition”). The Plaintiff paid KRW 42,131,60 as value-added tax and its additional tax pursuant to the instant disposition from February 28, 2013 to September 13, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 12, 13, 14 (including each number), Eul evidence Nos. 3 and 4, and the purport of the whole pleadings

Considering that the actual business operator of the instant business is Kim 00, such circumstance is confirmed by each investigation agency and the National Ombudsman, that the head of Dongdaemun District Tax Office expressed his opinion to revoke the instant disposition ex officio, and that the revocation of the comprehensive income tax related to the instant business establishment is contrary to the principle of trust protection, the instant disposition is null and void because the defect is significant and apparent. Accordingly, the amount of tax payable based on the instant disposition constitutes unjust enrichment, since there is no legal ground.

3. Determination

(a) Facts of recognition;

(1) The Plaintiff is a business operator who has operated the clothing manufacturing business, which is the same type of business as the instant place of business, with the trade name of “00Tex,” and Kim 00 is a person who has worked for the head of a department in the clothing manufacturing enterprise operated by the Plaintiff.

(2) On October 13, 2011, the Plaintiff entered into a lease contract of KRW 20 million with a lessor of the instant workplace in the name of the Plaintiff. Kim 00 requested a tax accountant 00 to register his business in the name of the Plaintiff, along with the above lease contract.

(3) The Plaintiff filed a complaint with the Plaintiff on the charge of forging the business registration application, and Kim 00 stated in the Seoul Eastdong Police Station that “the Plaintiff was permitted to issue the business registration by telephone, and the amount to be received from the Customer was received from the Plaintiff as the account in the name of the Plaintiff.” However, Kim 00 was suspended due to unknown whereabouts.

(4) On November 11, 2013, the Anti-Corruption and Civil Rights Commission recommended the Defendant to reach an agreement with the Plaintiff. Accordingly, on January 2, 2015, the Defendant deemed the actual business operator of the instant workplace as Kim00, and corrected the Plaintiff’s comprehensive income tax by reducing and correcting the Plaintiff’s income tax by deducting the amount of income generated at the instant workplace from the Plaintiff’s total income

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 8 to 11, 17 to 20, the purport of the whole pleadings

B. Determination

(1) If there is no taxation disposition or it is null and void, it constitutes unjust enrichment obtained by the State without any legal ground (see Supreme Court en banc Decision 91Da32053, Mar. 31, 1992). However, in order for the State to be subject to taxation to become null and void as well, there must be significant and objective defects in the disposition. Furthermore, if there are objective reasons to believe that there is no legal relations or factual relations which are not subject to taxation, it would be apparent that there is no taxation, and it would be apparent that there would be no clear and objective defects in the disposition of the Plaintiff’s business establishment, which would be subject to taxation, and it would be apparent that there would be no clear and objective reasons to believe that there would be no illegality that the Defendant would be an unlawful taxation disposition that would be contrary to the principle of non-existence of the Plaintiff’s business owner’s own name and thus, it would not be deemed that it would be unreasonable to view the Plaintiff’s business owner’s new business owner’s own name and thus, it would not be apparent that the Plaintiff’s business owner would not be subject to taxation of this case.

(3) Therefore, the Plaintiff’s assertion premised on the invalidity of the instant disposition is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.