Whether it is unlawful that only an accusation is filed on the material and the failure to correct the tax base and tax amount is not corrected;

It is unlawful that a lawsuit seeking confirmation of illegality of omission was filed on the ground that the national tax refund did not fall under the disposition which is the object of an appeal litigation or the determination of the national fund is not made.

Article 51 (Appropriation and Refund of National Tax Refund)

Article 2 (Definitions of Management of National Funds)

1. The instant lawsuit shall be dismissed.

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

It is confirmed that the defendant did not make a disposition to refund the national funds overpaid or erroneously paid in KRW 461,265,983 to the plaintiff.

1. Facts of recognition;

A. The Plaintiff is a company established on January 11, 1997 for the purpose of manufacturing and wholesale business of computer peripheral devices.

B. The Plaintiff reported and paid the value-added tax and the corporate tax (hereinafter “instant tax”) as follows between the second and the first period of 2000 to the year 2002.

Taxation Period

Value-Added Tax (won)

Corporate tax (won)

Total

200 No. 2

Estimated Plan

1,197,470

Finality

27,307,075

1, 2001

Estimated Plan

2,483,881

196,839,843

Finality

17,515,448

201

Estimated Plan

2,122,755

Finality

7,204,108

1, 2002

Estimated Plan

43,872,456

50,606,073

Finality

2,116,874

Total

213,820,067

247,445,916

461,265,983

C. On July 10, 2002, between September 30, 2002 and September 30, 2002, the Defendant conducted a tax investigation with the Plaintiff, and deemed that the entire sales and purchase tax invoice received by the Plaintiff during each of the above taxation periods constituted a processing tax invoice, and filed a complaint against the Plaintiff on June 17, 2003 under the suspicion of violating the Punishment of Tax Evaders Act.

D. Meanwhile, as to the Plaintiff’s filing of a civil petition for grievance with the Defendant on September 15, 2003, upon notifying the Defendant of the results of the tax investigation, the Defendant sent a reply to the Gangnam Police Station to the effect that the entire sales and purchase tax invoices received by the Plaintiff were confirmed as a processing tax invoice and confirmed as a material, and that the Plaintiff filed a complaint with the Gangnam Police Station.

E. On October 10, 2003, the plaintiff filed a request with the National Tax Tribunal to the effect that the defendant decided the tax amount of this case paid by the plaintiff as the national tax refund and should be refunded in addition to additional dues on refund, but the National Tax Tribunal dismissed the claim on December 31, 2003 on the ground that the defendant did not make a disposition to explicitly or implicitly refuse the refund of national tax against the plaintiff.

F. On March 16, 2004, the Plaintiff filed an application for national tax refund to the Defendant on the same purport with the National Tax Tribunal on May 8, 2004. However, on April 8, 2005, the National Tax Tribunal rejected the Plaintiff’s claim on the ground that: (a) the Plaintiff paid the instant tax on its own; (b) there was no disposition of imposition or collection; and (c) the instant tax was paid in the form of value-added tax and corporate tax; (d) it was to conceal tort as a material and does not constitute a substantial amount of national tax, and thus, it does not constitute an object of objection under the Framework

G. On October 24, 2005, the Plaintiff filed a lawsuit against the Republic of Korea seeking a refund of the instant tax by Seoul Central District Court 2005Gahap95810 on October 24, 2005, but the court rendered a ruling dismissing the instant tax on the ground that the Plaintiff’s filing and payment of the tax cannot be deemed as null and void per se, and the said judgment became final and conclusive by the Supreme Court’s dismissal of the appeal on July 13, 2007.

[Reasons for Recognition] Gap evidence Nos. 1-5, 11, 12, Eul evidence Nos. 1-2, 3-3, and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

In a case where the Defendant confirmed the Plaintiff’s processed turnover and processed purchase amount through the “field investigation for imposition disposition” under Articles 81-5 and 81-9 of the Framework Act on National Taxes and Article 63-3 of the Enforcement Decree of the same Act, and confirmed the fact that there was an error in the details of the return of the value-added tax and the corporate tax base and the tax amount, it is unlawful that the Defendant did not take any measures despite the fact that it did not take any measures despite having to confirm the tax base and the tax amount by revising the tax amount according to the results of the investigation and determine

Since the instant taxes are not national taxes, but national taxes are erroneously paid or overpaid in the form of national taxes, and the Defendant manages them as national funds according to the Management of the National Funds Act, it is unlawful that the Defendant did not take such measures despite its duty to determine the return of the national funds erroneously paid or erroneously paid pursuant to Articles 5 and 15 of the Management of the National Funds Act and Article 17 of

B. Relevant statutes

Article 51 (Appropriation and Refund of National Tax Refund)

Article 2 (Definitions of Management of National Funds)

Article 5 (Principles for Collecting and Receiving Revenues from Management of the National Funds)

Article 15 (Return of Payments Made by Mistakes)

Article 17 (Return, etc. of Erroneouss or Erroneouss by Management of the National Funds)

C. Whether the instant lawsuit is lawful

An omission subject to a lawsuit seeking confirmation of illegality of omission refers to an administrative agency’s failure to take a certain measure within a reasonable period of time despite the existence of a legal obligation to do so (Article 2(1)2 of the Administrative Litigation Act). Thus, in order to lawful a lawsuit seeking confirmation of illegality of omission, an action to be taken by an administrative agency upon its application falls under a “disposition” subject to an administrative litigation. The term “disposition” here refers to, in principle, an act under public law of an administrative agency, such as ordering the establishment of rights or the burden of obligations under laws or regulations with regard to a specific matter, or directly giving rise to other legal effects, and an act that does not directly affect the legal status of the other party or related persons does not constitute that act.

(2) The nature of the instant tax

Under the Management of the National Funds Act, the term "national funds" refers to all cash and cash which are paid with the revenues of the State or have the same value as the cash paid with the revenues of the State in accordance with statutes, contracts, etc. (Article 2 subparagraph 1 of the Management of the National Funds Act). It refers to the general concept of all cash, etc. paid to the National Treasury without regard to the grounds for the revenues of Article 2 subparagraph 1 of the Management of the National Funds Act. A national

Therefore, taxes paid under the Act on the Imposition and Collection of National Taxes shall be national taxes while national taxes are at the same time, and national taxes erroneously paid and overpaid shall not be deemed as national taxes which constitute national funds but are erroneously paid and overpaid. Article 15 of the Management of the National Funds Act, which is a general provision on the return of national funds erroneously paid or overpaid, and Article 17 of the Enforcement Decree of the same Act, which is the general provision on the return of national funds erroneously paid and erroneously paid, applies in preference to the former, in relation to the provisions on the return of overpaid or erroneously paid taxes under the Acts and subordinate statutes which are the cause of national funds revenues, and the latter shall be applied in preference to the former. Therefore, as long as the instant taxes were paid as they were paid as the performance of tax liabilities confirmed by the Value-Added Tax Act and the report under the Corporate Tax Act, the return by

(3) Nature of determination of national tax refund under Article 51 of the Framework Act on National Taxes

The provisions of Articles 51 and 52 of the Framework Act on National Taxes concerning the refund of national taxes and the determination of national taxes, additional dues and additional dues for which the tax payer’s right to claim refund has already been determined, are not only stipulated in the procedures for refund by the tax authorities, but only determined by the determination of national tax refund (including additional dues) pursuant to such procedures. Thus, the determination of national tax refund or the decision of refusal to claim this decision is not a disposition that specifically and directly affects the existence or scope of the tax payer’s right to claim refund, and it cannot be deemed a disposition subject to appeal (Supreme Court en banc Decision 88Nu6436 Decided June 15, 19

Therefore, if it is intended to claim the return of national tax already paid, it shall be decided by filing a civil suit seeking the invalidation or non-existence of a disposition related to the determination of a tax obligation, or seeking the return of unjust enrichment, in the case of the so-called erroneous payment, in which the act of confirming a tax obligation, such as a tax return or a disposition of imposition, or the act of collecting the tax obligation, becomes void or non-existent, as the claim for repayment has already become final and conclusive. In the case of the so-called excessive payment, where there is a defect that is the cause of cancellation of a disposition related to the determination of a tax obligation, it shall be excluded by filing an administrative suit seeking the cancellation of a disposition related to the determination of a tax obligation (in the tax return method, a lawsuit seeking the revocation of a disposition rejecting a request for correction should be applied).

(4) The theory of lawsuit

In light of the Lininin legal doctrine, the instant lawsuit is unlawful as it sought by the Defendant to confirm illegality of omission on the ground that the Defendant did not make a decision on national tax refund or erroneous payment, which does not fall under a disposition subject to an appeal litigation, as seen above.

3. Conclusion

Therefore, we decide to dismiss the lawsuit of this case and decide as per Disposition.