State liability

It is difficult to regard that the administrative disposition is deemed to have lost objective legitimacy by disregarding objective duty of care when considering the general public official as the standard for the calculation of the shares of this case by a tax official affiliated with the defendant.

Article 15 of the Corporate Tax Act; Article 89 of the Enforcement Decree of the Corporate Tax Act; Article 60 of the former Inheritance Tax and Gift Tax Act (Amended by Act No. 6780, Dec. 18, 2002)

Seoul High Court 2018Na2009539 Damage (Ba)

OO Industry, Inc.

Korea

December 14, 2017

8.01.18

1. The Defendant: KRW 74,947,765 for the Plaintiff and its related expenses from May 31, 2012 to January 18, 2018

5% per annum, 15% per annum from the following day to the date of full payment.

(d)

2. The plaintiff's remaining main claims and conjunctive claims are all dismissed.

3. Of the litigation costs, 70% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Cheong-gu Office

The primary purport of the claim: the defendant shall claim to the plaintiff KRW 232,583,713 as well as the plaintiff from May 31, 2012.

Until the delivery date of a copy of the complaint of this case, 5% per annum and 15% per annum from the next day to the day of complete payment shall be paid.

Preliminary Claim 1: The defendant shall pay to the plaintiff 232,583,713 won with 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. Acquisition of the instant shares

The Plaintiff issued HoO Co., Ltd. (hereinafter referred to as " HoO") from EO on December 11, 2002

Food 18,500 shares(hereinafter referred to as "the shares of this case") were acquired in 10,000 won per share.

B. Defendant’s imposition of corporate tax

1) Around the beginning of 2012, the director of the tax office having jurisdiction over the Defendant, conducted a partial investigation of corporate tax for the business year 2002 against the Plaintiff. The Plaintiff’s acquisition of the instant shares was deemed to have purchased securities from an individual with a special relationship at a price lower than the market price, and the amount equivalent to the difference between the market price and the purchase price

2) At the time of calculating the market price of the instant shares, the Defendant calculated the market price according to the supplementary assessment methods pursuant to Articles 61 through 66 of the Inheritance Tax and Gift Tax Act (hereinafter referred to as "the Inheritance Tax and Gift Tax Act"), 200 won per 50,000 won per 60,000 won per 50,000 won per 20,000 won per 40,000 won per 50,000 won per 60,000 won per 50,000 won per 60,000 won per 40,000 won per 60,000 won per 60,000 won per 9,000 won per 60,000 won per 60,000 won per 60,000 won per 9,000 won per 60,000 won per 60,000 won per stock (hereinafter referred to as "the above valuation method").

3) As to this, the Plaintiff’s judgment on November 9, 2015 regarding the instant taxation disposition in the Namcheon Tax Office

Although the application was filed for the ruling, it was rejected by the South Mancheon Tax Office.

C. Relevant statutes

The provisions pertaining to the Corporate Tax Act and the Inheritance Tax and Gift Tax Act relating to the instant case are as follows.

* Corporate Tax Act

Article 15 (Scope of Gross Income)

(1) The net person of a corporation concerned, except as capital or financing and what is provided in this Act.

amount of proceeds generated by transactions that increase industry shall be the amount of proceeds.

(2) The following amounts shall be regarded as earnings:

1. The time provided for in Article 52 (2) with securities from an individual who is a specially related person provided for in Article 52 (1);

If purchase is made at a lower price, the amount equivalent to the difference between the market price and the purchase price thereof.

Article 52 (Disliability of Evaluation of Wrongful Acts)

(1) The head of a tax office or the Commissioner of the competent Regional Tax Office having jurisdiction over the place of tax payment shall calculate

Any transaction with a specially related person specified by Presidential Decree (hereinafter referred to as "specially related person")

If it is deemed that the tax burden on income of the person has been reduced unreasonably, such corporation

Each business year of the corporation, regardless of the calculation of the amount of the act or income (hereinafter referred to as the "Calculation of Wrongful Acts").

The Do's income amount may be calculated.

(2) In applying paragraph (1), persons who are not specially related persons, such as sound social norms and commercial practices.

Price applicable or deemed applicable to a normal transaction (rate, interest rate, rent, and exchange rate);

The rate shall include the rate and other equivalents, and hereinafter referred to as "market price" in this Article).

* Enforcement Decree of the Corporate Tax Act

Article 89 (Scope of Market Price, etc.)

(1) In applying Article 52 (2) of the Act, where there is a price generally traded between many and unspecified persons other than a specially related person and a third party who is not a specially related person in a similar situation, the price (where stocks issued by a stock-listed corporation are traded at the Korea Exchange, the market price of the relevant stocks shall be the final price on the date of

(2) In applying Article 52 (2) of the Act, where the market price is unclear, the amount calculated by applying the following order in the following order:

1. Where an appraisal corporation under the Act on Appraisal and Certified Public Appraiser has a value appraised, such value (in case there are not less than two appraised values, the average amount of the appraised values): Provided, That stocks, etc. shall be excluded;

2. The value appraised by applying mutatis mutandis Articles 38, 39, 39-2, 39-3, and 61 through 66 of the Inheritance Tax and Gift Tax Act and Article 101 of the Restriction of Special Taxation Act. In this case, the appraised value of stocks (limited to stocks issued by a stock-listed corporation) owned by the corporation that issued the relevant unlisted stocks in appraising the unlisted stocks pursuant to Article 63 (1) 1 (b) of the Inheritance Tax and Gift Tax Act and Article 54 of the Enforcement Decree of the same Act shall be the final closing value at the Korea Exchange as of the base date for appraisal, and in applying mutatis mutandis Article 63 (2) 1 and 2 of the Inheritance Tax and Gift Tax Act and Article 57 (1) and (2) of the Enforcement Decree of the same Act, "immediately six months (three months in

* The former Inheritance Tax and Gift Tax Act (amended by Act No. 6780 of Dec. 18, 2002)

Article 60 (Principles, etc. of Appraisal)

(1) The value of property on which an inheritance tax or gift tax is levied under this Act shall be the market price as of the date the inheritance commences or the date of donation (hereinafter referred to as the "date of appraisal"). In such cases, the value appraised by the method of appraisal stipulated in Article 63 (1) 1 (a) and (b) (excluding cases falling under the provisions of Article 63 (2))

(2) The market price referred to in paragraph (1) shall be the value which is generally accepted in cases of free trade between many and unspecified persons and which shall include the expropriation, public sale price and appraisal price and other things recognized as the market price under the conditions as prescribed by

(3) In the application of paragraph (1), where it is difficult to compute the market price, the assessed value shall be based on the methods prescribed in Articles 61 through 65 in consideration of the kinds, circumstances of transaction, etc. of the

Article 61 (Appraisal of Real Estate, etc.)

(1) Real estate shall be appraised by the following methods:

2. Buildings:

The value calculated and publicly announced by the Commissioner of the National Tax Service at least once a year taking into account the prices, structure, use and location of buildings

Article 63 (Evaluation of Securities, etc.)

(1) The appraisal of securities, etc. shall be conducted by the following methods:

1. Appraisal of stocks and investment shares:

(c) Stocks and equity shares not listed on the Korea Stock Exchange other than those under item (b) shall be appraised according to the methods prescribed by Presidential Decree in consideration of corporation assets and profits;

* The former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17828, Dec. 30, 2002)

Article 49 (Principles, etc. of Assessment)

(1) The term "those recognized as the market price under conditions prescribed by Presidential Decree, such as the expropriation, public sale price, appraisal price, etc." in Article 60 (2) of the Act means, in cases of sale, appraisal, expropriation, auction (referring to the auction under the Civil Procedure Act; hereafter the same shall apply in this paragraph) or public auction during a period of not more than six months (three months in the case of donated property) before or after the base date of appraisal,

1. If the fact of sale and purchase of the relevant property exists, the transaction value: Provided, That this shall not apply where the transaction value is deemed objectively unfair, such as transactions with persons with a special relationship provided for in Article 26 (4);

2. In case where there exist the appraised values of the relevant property (excluding the properties prescribed in Article 63 (1) 1 of the Act) by the public appraisal institutions prescribed by the Ordinance of the Ministry of Finance and Economy (hereinafter referred to as the “appraisal institutions”), the average value of the said appraisal values: Provided, That in case where there exist the appraisal values which are appraised by the public appraisal institutions prescribed by the Ordinance of the Ministry of Finance and Economy with respect to the relevant property (excluding the properties falling under any of the following items, and in case where the relevant appraisal values are less than 80/100 of the values appraised pursuant to the provisions of Articles 61, 62, 64 and 65 of the Act, the average value of such appraisal values shall be based on the values requested by the head of a tax office (including

(a) Values which are not suitable for the payment purpose of inheritance tax and gift tax, such as the assessment of relevant property on the condition that certain conditions are met;

(b) Value of the relevant property not appraised in the original form as of the standard date of appraisal;

3. Where any fact of expropriation, auction or public auction exists with respect to the property concerned, the amount of compensation, auction or public auction.

Article 54 (Appraisal of Unlisted Stocks)

(1) Stocks and investment shares not listed on the Korea Stock Exchange (hereinafter referred to as “non-listed stocks” in this Article) under Article 63 (1) 1 (c) of the Act shall be the value assessed by the following formula:

The value per share = The weighted average amount of net profits and losses for the latest three years per share ± the rate prescribed by the Ordinance of the Ministry of Finance and Economy in consideration of the average interest rate formed in the financial market (hereinafter referred to as the “net value of profits and losses”).

(2) Where the value of unlisted stocks appraised under paragraph (1) falls short of the value appraised by the following formula, the value shall be the value appraised by the following formula:

The value per share = the net asset value of the relevant corporation ¡Àthe net asset value of the relevant corporation (hereinafter referred to as the “net asset value”).

(3) In applying the provisions of paragraphs (1) and (2), where a corporation that has issued stocks or investment shares in accordance with Article 63 (1) 1 (c) of the Act owns stocks or investment shares not exceeding 10/100 of the total number of outstanding stocks, etc. of a corporation that has issued other unlisted stocks, the assessment of such other unlisted stocks may be based on the acquisition value provided for in Article 74 (1) 1 (e) of the Enforcement Decree of the Corporate Tax Act notwithstanding the provisions of

(4) In applying the provisions of paragraph (2), "total number of issued stocks" shall be based on the total number of issued stocks as of the evaluation base date.

Article 55 (Method of Calculating Value of Net Assets)

(1) The net asset value under Article 54 (2) shall be the value calculated by subtracting liabilities from the value appraised under Articles 60 through 66 of the Act as of the evaluation base date.

* The former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008)

Article 55 (Method of Calculating Value of Net Assets)

(1) The net asset value under Article 54 (2) shall be the value obtained by subtracting liabilities from the value evaluated under Articles 60 through 66 of the Act as of the standard date of appraisal. In this case, if the value of assets of the relevant corporation evaluated under Articles 60 (3) and 66 of the Act is smaller than the book value (referring to the value obtained by subtracting the depreciation costs from the acquisition value; hereafter in this paragraph the same shall apply), it shall be the book value, but this shall not apply to cases where justifiable reasons falling short

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, Eul evidence Nos. 1, 2, 4, 5, 9, and the purport of the whole pleadings

2. Determination on this safety defense

The defendant is on the ground that the plaintiff suffered losses due to illegal taxation by tax officials.

Although the plaintiff should seek revocation of the taxation disposition with respect to the lawsuit of this case seeking state liability through administrative litigation procedure, the plaintiff asserts that the lawsuit of this case is unlawful since the plaintiff asserted the illegality of the taxation disposition through the lawsuit of this case, which would not have been able to file an administrative litigation after the period for filing

In a case where an illegal administrative disposition can be sought for revocation through an appeal litigation under the Administrative Litigation Act, and in a case where the illegal administrative disposition is caused by a public official's intentional or negligent act and thereby constitutes a tort, the State may claim damages under the State Compensation Act against the State. Therefore, the defendant's above assertion is

3. The plaintiff's assertion

A. Claim for damages caused by a tort (main claim)

The defendant evaluated the price per share of the shares of this case as KRW 109,544 as follows.

Inasmuch as the Plaintiff did not know the relevant laws and regulations or did not have necessary knowledge, thereby making an erroneous administrative disposition by subjecting the interpretation of the laws and regulations. Such unlawful performance of official duties led to the Plaintiff’s payment of corporate tax based on the instant taxation disposition, the Defendant is liable to compensate for damages equivalent to the amount claimed by the Plaintiff due to the tort.

① In relation to the assessment, the building of this case does not exist on December 11, 2002, the assessment base date.

building was not a building.

2. As regards the appraisal, the value of the instant leisure building was calculated on December 30, 2003.

Article 55 (1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which applies retroactively, is evaluated as the larger book value between the book value and the publicly notified value by the Commissioner

(3) In relation to the assessment, shares of O or Maritime Construction held by O shall be issued by each of the total outstanding shares.

Since it falls under the ratio of not more than 10/100, the interpretation of the Ministry of Strategy and Finance with respect to the above provision is able to be based on the acquisition value rather than the supplementary appraised value pursuant to Article 54(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by August 5, 2005). In addition, the interpretation of the Ministry of Strategy and Finance with respect to the above provision is to be evaluated in a way favorable to the taxpayer if there

(b) A claim for return of unjust enrichment;

Since the instant taxation disposition is null and void due to significant and apparent defects, as stated in the preceding paragraph, the Defendant is identical to the amount of corporate tax claimed by the Plaintiff based on the instant taxation disposition.

The amount is to be returned as unjust enrichment.

4. Determination

A. Determination on a claim for damages due to a tort (main claim)

(i) the effect of res judicata, even if any administrative disposition is subsequent to a revocation in an appeal litigation;

On the other hand, it is difficult to readily conclude that the pertinent administrative disposition was caused by the intention or negligence of a public official and therefore constitutes a tort. In a case where the public official in charge of the pertinent administrative disposition is deemed to have lost objective legitimacy by failing to perform an objective duty of care when considering the public official’s standard, it is reasonable to deem that the public official in charge of the pertinent administrative disposition satisfied the requirements for State liability under Article 2 of the State Compensation Act in a case where the administrative disposition is deemed to have lost objective legitimacy. In such a case, whether the objective legitimacy has been faithfully justified should be determined by the determination on whether there exists a substantial reason to assume the responsibility for compensating for damages by taking into account all the circumstances, such as the type and nature of the gains of infringement, the form and cause of the administrative disposition being infringed, the victim’s involvement in the exercise of the administrative disposition, and the degree of damages (see, e.g., Supreme Court Decision 9Da

2) First, examining the evaluation No. 1, according to Gap evidence No. 3, the title of this case is examined.

The facts of destruction of a building due to removal in the building ledger are acknowledged to have been recorded on December 12, 2002, and the public official in charge of the assessment of the price of the instant shares under the premise that the instant building exists. However, there is no dispute between the parties to the appraisal of the price of the instant shares on the premise that there is the instant building. Meanwhile, comprehensively taking account of the overall purport of pleadings, the following circumstances, namely, the standard date for appraisal of the market price of the instant shares, namely, the Plaintiff’s acquisition of the instant shares, is December 11, 2002. Thus, it is difficult to readily conclude that the instant building was destroyed on the basis of the entry in the building ledger as at the base date for appraisal of the market price of shares at the time of the base date for appraisal; (b) the Defendant requested a HoO to submit relevant materials to assess the market price of shares at the time of the appraisal date; (c) even if the office did not submit the documents related to the relocation before 2005, the objective appraisal value of the building was not known to the public official in charge 2016

(2) According to the above appraisal method: (a) under the provisions of Articles 60 through 66 of the former Inheritance Tax and Gift Tax Act and Articles 54 and 55(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 18177, Dec. 30, 2003), where a building among the assets of the relevant corporation is assessed and publicly notified by the Commissioner of the National Tax Service, it is difficult to view the value of the instant building as the value of the appraisal value at a higher than the value calculated and publicly notified by the Commissioner of the National Tax Service under Article 55(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (excluding depreciation costs from the acquisition value), since it is difficult to view the above appraisal as the value of the instant building at the time of appraisal by a public official who is in charge of the above appraisal as the value of the instant building at the market value, it is difficult to view the appraisal value at the time of the appraisal as the market value at the time of the above auction or sale under the provisions of Article 60(2) of the former Inheritance Tax and Gift Tax Act.

Finally, according to Article 54 (3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18989 of Aug. 5, 2005), where a corporation that issued non-listed stocks, etc. owns stocks and investment shares not more than 10/100 of the total number of issued stocks of a corporation that issued non-listed stocks, etc., the evaluation of other non-listed stocks may be based on the acquisition value. According to the questioning reply of the Ministry of Strategy and Finance property tax system and-34 ( March 3, 2008) of the Ministry of Strategy and Finance, if the corporation owns stocks not more than 10/100 of the total number of issued stocks of a corporation that issued non-listed stocks, the evaluation of non-listed stocks is difficult to be based on the favorable method to the taxpayer, and even if the corporation that issued non-listed stocks owns stocks not more than 10/100 of the total number of issued stocks of a corporation that issued the non-listed stocks, the evaluation of the non-listed stocks cannot be deemed unlawful.

3) Furthermore, there is no dispute between the parties that the Plaintiff paid the Defendant corporate tax equivalent to KRW 75,268,484 by applying the new law retroactively to the scope of compensation for damages. As such, the Defendant is obligated to pay to the Plaintiff the damages incurred therefrom, calculated at the rate of 5% per annum as prescribed by the Civil Act from May 31, 2012 to January 18, 2018, which is the date the Defendant rendered the decision of this case, to raise a dispute as to the existence or scope of the Defendant’s obligation to pay damages to the Plaintiff, calculated at the rate of 15% per annum as prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from the following day to the date of full payment.

B. Determination on the claim for return of unjust enrichment (other than the part cited in the principal claim)

1) In order to make a tax erroneously or erroneously paid or overpaid, a tax payment or a tax collection should be null and void as it has no legal basis in substance or procedural law or due to the significant and apparent defect of the tax disposition. If the defect of the tax disposition is limited to the extent that the tax disposition can only be revoked, unless the tax authority voluntarily cancels it or cancels it by the appeal procedure (see, e.g., Supreme Court Decision 94Da28000, Nov. 11, 1994).

Therefore, in order for a taxation disposition to be null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and its defect must be objectively and objectively obvious. In determining whether there is a significant and apparent defect, it is necessary to reasonably consider the purpose, meaning, function, etc. of the laws and regulations, which serve as the basis for the pertinent taxation, and at the same time consider the specificity of the specific case itself. As such, a taxation disposition on a person who does not have any legal relation or factual relations, which is subject to taxation, should be serious and obvious, but if it is apparent only after an accurate investigation of the factual relations as to a certain legal relation or factual relations which are not subject to taxation, it cannot be deemed that the defect is apparent even if it is serious, and thus, it cannot be deemed that there is an unlawful taxation disposition that misleads the fact of taxation (see Supreme Court Decision 200Da24986, Jul. 10, 201).

2) In full view of the above legal principles, in light of the above circumstances, ① it is difficult to see that the defect of the instant taxation disposition due to the instant assessment results is null and void as it is significant and apparent, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion on this part is without merit.

5. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and b

(s) The application for money shall be dismissed as it is without merit. It is so decided as per Disposition.