In order to become unjust enrichment, the error of taxation disposition should be null and void as the defect of taxation is significant and apparent.

In order to make an unjust enrichment, the tax payment or the collection of the tax must be null and void as there is no substantial or procedural legal basis or the defect of the tax assessment is significant and apparent.

Article 1 of the National Tax Collection Act

2013Du11854 Unjust enrichment

Co., Ltd 】

Korea

on October 26, 2016

1. The plaintiff's claim is dismissed.

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

1. Basic facts

(a) Stock company ¡¿ Between June 5, 1990 and September 30, 1998, the electronic company manufactured electric wires necessary for the inside of a motor vehicle and supplied them to a motor vehicle stock company, etc. under the 587-6 OO-dong 587-6 from June 5, 199 to September 30, 198 】

다. 남대구세무서장은 2001. 5. 22. ××전자의 1998년 2기 매출세금계산서 불부합자 료금액(××산업 주식회사에 대한 매출누락자료금액 1,168,000원, ××자동차 주식회사에 대한 매출누락자료금액 124,740,000원)을 확인하고, 2001. 11. ××전자 및 그 당시 대표이사 최××에게 1998 사업연도 법인세 통합조사에 필요한 법인경리장부 제출 및 최××의 출석을 공문으로 요청하였다. 라. 남대구세무서장은, ××전자 및 대표이사 최××가 법인경리장부 등을 제출하지 아니하자 추계조사방법에 의하여 ××전자의 1998 사업연도 수입금액(환산매출액)을 2,710,347,000원으로, 1998 사업연도 추계소득금액을 287,296,000원으로 각 산정하였다(이하 '이 사건 추계결정'이라 한다). 구체적인 산정내역은 다음과 같다(갑 제3호증의1, 을 제4호증). 마. 남대구세무서장은 2001. 11.경 위와 같이 산정된 수입금액(환산매출액) 및 추계소 득금액에 따라 ××전자에 대하여 1998 사업연도 법인세 113,801,724원 및 1998 사업연도 2기분 부가가치세 120,549,146원을 각 결정・고지하였다. 또한 남대구세무서장은 2001. 12.경 위 추계소득금액 287,296,000원을 ××전자의 대표이사 최××에 대한 1998년 귀속 인정상여로 소득처분을 하고, 최××에게 위와 같은 내용의 소득금액변동통지(이하 '이 사건 소득금액변동통지'라 한다)를 함과 아울러 이를 동대구세무서장에게 과세자료로 통보하였다. 바. 이에 따라 동대구세무서장은 2002. 4.경 최××에 대하여 1998년 귀속 종합소득세 147,359,810원을 부과・고지(이하 '이 사건 종합소득세 부과처분'이라 하고 그 세액을 '이 사건 종합소득세'라 한다)하였다. "사. 최××는 2008. 11.경 동대구세무서장로부터 다음과 같은 내용의 체납세액(이하",이 사건 체납세액'이라 한다)을 통지받았다[이 사건 종합소득세의 세액은 2008. 11. 기준으로 260,826,400원(본세 147,359,810원 + 가산세 113,466,590원)이었다]. 아. 최××는 2008. 11. 17. 동대구세무서장에게 이 사건 체납세액에 대하여 2008. 12. 16.까지 체납처분유예를 신청하였고, 그 무렵 동대구세무서장으로부터 같은 내용의 체납처분유예결정을 받았다. 자. 원고는 최××의 위 체납처분유예 신청 당시 동대구세무서장에 대하여 '최××가 2008. 12. 16.까지 위 국세 등(이 사건 체납세액 전액)을 완납하지 아니할 때에는 원고의 책임 하에 납부할 것을 보증합니다'라는 내용으로 납세보증을 하였다. 동대구세무서장은, 최××가 체납처분유예기간 종기인 2008. 12. 16.까지 이 사건 체납세액을 납부하지 아니하자 원고를 이 사건 체납세액에 대한 제2차 납세의무자로 지정하고 그 체납세액 등이 기재된 납부통지를 고지하였으며, 위 고지서는 2008. 12. 17. 원고에게 도달하였다. 차. 동대구세무서는 2009. 1. 19. 원고 소유의 경북 OO군 OO면 OO리 1124 소재 공장용지 및 지상 공장건물(이하 '이 사건 부동산'이라 한다)에 대하여 국세징수법상 압류 및 공매 신청을 하였고, 원고 소유의 위 공장용지 및 지상 건물은 2009. 8. 7. 대금 685,540,680원에 최××에게 매각되었다. 동대구세무서는 2009. 10. 28. 위 매각대금 685,540,680원 중 636,759,270원을 배분받았다. [인정근거] 다툼 없는 사실, 갑 제1 내지 6호증(가지번호 있는 것은 가지번호 포함, 이하 같다), 을 제 1 내지 7, 9 내지 12호증의 각 기재, 변론 전체의 취지 2. 관계 법령

The relevant Acts and subordinate statutes are as shown in the attached Table (hereinafter referred to as the "related Acts and subordinate statutes") only with the title of the statutes.

3. The parties' assertion

A. The plaintiff's assertion

1) The notice of the change in the amount of income of this case is the tax administrative disposition that establishes and determines the obligation to report and pay the global income tax of this case 】 The highest court failed to receive the notice. Therefore, there was no obligation to pay the global income tax of this case 】 (the maximum amount).

2) ① In the case of the instant estimation determination, the requirements under the proviso of Article 32(3) of the former Corporate Tax Act and Article 93(1) of the former Enforcement Decree of the Corporate Tax Act were not satisfied. ② In the instant estimation determination, the instant estimation determination 】 (The amount of revenue in the business year 1998 of the electronic x the computation of the amount of revenue in the business year 1998 and the amount of estimated income in the business year 198 of the electronic x the purchase amount in the electronic x the electronic x the purchase amount, the amount of sales by January 1, 1998, the amount of

3) The estimation decision of this case 】 The disposal of the income by the estimation decision of this case 】 】 287,296,000 won of estimated income for the business year 1998 】 】 The disposal of the income to the 1998 】 is unlawful.

4) Therefore, the disposition of imposition of global income tax on the instant case 】 The instant disposition of imposition of global income tax on the instant case 】 is null and void on the grounds as seen above. Accordingly, the notice of designation and payment of the secondary taxpayer and the disposition of arrears (Attachment and Public Sale) on the instant real estate owned by the Plaintiff, which had been based on the tax payment guarantee against the Plaintiff by the Defendant (Dong Daegu Tax Office), are null and void on the grounds that it is within the scope of the tax amount of the global income tax on the instant global income, and the Defendant is obligated to return the amount equivalent

There is no defect in the instant estimation decision and the place of change in the amount of income, which are the premise of the instant disposition imposing global income tax, and even if there is a defect, this is nothing more than a cause of revocation. This is merely a cause of revocation, unless an appeal is brought against the instant disposition of global income tax, etc. regarding the instant disposition of global income tax, etc., the second taxpayer’s designation and payment notice to the Plaintiff by the Defendant (Dong Daegu District Office) and the disposition of arrears on the instant real estate owned by the Plaintiff is legitimate.

4. Determination

A. Whether notice of change in the income amount of this case is served

(1) It is reasonable to view that the tax authority’s notification of change in the amount of income to a corporation is an act of a customs office which directly affects the tax liability of the corporation which is a withholding agent (see, e.g., Supreme Court en banc Decision 2002Du1878, Apr. 20, 206). (1) However, according to the proviso of Article 192(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; hereinafter the same), even if the tax authority notifies the person to whom the income was attributed of change in the amount of income, the tax authority’s notification of change in the amount of income before and after the lapse of the tax base due date for global income was made pursuant to Article 20(1)1 (c) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same shall apply), if the tax authority becomes liable to pay the amount of income tax before the due date of income tax payment.

(3) Considering the above, the notification of change in the amount of global income on the person to whom the income accrued out of the company belongs cannot be deemed to affect the existence or scope of the liability for global income tax on the person to whom the income accrues. Furthermore, in cases where a taxpayer has filed an additional return and paid by himself/herself within the statutory additional payment deadline, he/she may separately request the competent tax authority for revocation of a request for correction or a disposition of refusal to correct the global income tax on the global income tax, and in cases where the tax authority imposes a global income tax on the taxpayer because the taxpayer fails to report and pay the additional tax within the statutory additional payment deadline, the taxpayer may directly request revocation of the disposition. In light of the fact that the notification of change in the amount of income made by the competent tax

3) Therefore, the notice of change in the amount of income in this case ¡¿ The person to whom the income amount is not electronically ¡¿ the maximum amount to which the income amount belongs ¡¿ The plaintiff's above assertion related to the effect of service on the premise that the notice of change in the amount of income in this case is

B. Determination on the remainder of the Plaintiff’s assertion

1) Relevant legal principles

A) In order to make a tax erroneously or erroneously paid or overpaid, the tax payment or tax collection should be null and void as it is practically or legally based on the substantive or procedural law, or the defect of the tax disposition is significant and apparent. In a case where 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 87Meu54, Jul. 7, 1987).

B) A defect in the determination of a tax base and amount of tax is found in the determination of a tax base and amount of tax, even if it is based on the provisions of the invalid Enforcement Decree or the directives, but rather becomes a cause for revocation (see, e.g., Supreme Court Decisions 84Da42166, Aug. 21, 1984; 91Da42166, Jul. 13, 1993). In addition, in a case where a tax assessment is conducted by misunderstanding the legal relation or facts subject to taxation and/or a factual relation, if there is objective reason to believe that it is subject to taxation and it is possible to accurately investigate the factual relation and whether it is subject to taxation, the defect cannot be deemed as serious and obvious (see, e.g., Supreme Court Decisions 2002Da68485, Oct. 15, 2004; 2005Da31439, Oct. 26, 2006).

2) Determination

A) The legality of the instant estimate determination

(1) On May 22, 2001 】 The director of the tax office of Daegu District Tax Office confirmed the non-conforming data on the second-term sales tax invoice of 1998 】 electronic 】 (the amount of data omitted from sales to the industrial corporation 】 1,168,000 】 the amount of data omitted from sales 】 】 124,740,000 】 the amount of data omitted from sales to the motor vehicle 】 the 】 the representative director at the time of 】 electronic and 】 the 】 the 】 the 】 the 】 the 】 the 】 the 】 the 】 the 】 electronic and 】 the 】 the 】 the 】 the 】 】 electronic, etc. failed to submit the 】 the 】 the 】 electronic, etc. as seen earlier. Therefore, in calculating the income amount, the determination of this case is legitimate.

(2) As alleged by the Plaintiff, even if the director of the tax office rendered the estimation decision of this case for the purpose of calculating the tax base and the amount of tax without any ground for determination of estimated tax amount under the tax law, it is merely an error in the method of investigation and determination under the tax law, and it is merely a ground for revocation of administrative disposition (Supreme Court Decision 79Nu237 Decided November 27, 1979: despite the Plaintiff’s legitimate issuance of the tax invoice, a public official in charge of investigation of the disposition agency’s erroneous notice of such error and omitted sales in the book because the Plaintiff failed to issue the tax invoice, and making the estimation decision by making an error in the omission of entry and omission of sales in the book was merely a ground for revocation of the administrative disposition, and it does not constitute a ground for revocation of the annual invalidation).

(1) Unlike the allegations alleged above by the plaintiff, the purchase price for one quarter of 】 1,290,361,850 won (=617,919,075 won + 672,475 won + total purchase price) which is almost the same as KRW 1,290,361,00, which is recognized in the decision of estimation of this case (Evidence 2-2) 】 (2) 】 】 198,307,200 won (i.e., 87,137,190 won + 900, 1900 + 205, 300, 400, 400, 200, 300, 300, 40, 40, 306, 20, 300, 400, 30, 400, 30, 40, 50, 30, 29, 20.

Standard income rate and additional rates applied are lawful (No. 13, 14).

(5) As alleged above by the Plaintiff, even if there was a defect caused by a disease or injury caused by the purchase amount of January 1, 1998, which serves as the basis for calculating the amount of income and estimated amount of income in the business year 1998 by electronic, the amount of sales by January 1, 1998, standard income rate, etc., this cannot be deemed as a defect in the determination of the tax base or amount of tax, and the defect cannot be apparent as seen earlier. Therefore, the above defect in the Plaintiff’s assertion is merely a cause for revocation, which is not a cause for invalidation of an administrative disposition as a matter of course.) ¡¿ The legality of disposition of income

(1) The former x the tax base and amount of corporate tax for the business year 1998 was not reported at all, and the latter 】 May 22, 2001 】 the director of the Nam Daegu District Tax Office 】 (1,168,000 won 】 the amount of data omitted from sales to the stock company 】 (1,168,00 won 】 the amount of data omitted from sales to the stock company 】 124,740,000 won x the amount of data omitted from sales to the automobile 】 11.1. 】 the former 】 the representative director at the time of the integration of corporate tax for the business year 】 the attendance of the former 】 the fact that the latter 】 the latter 】 the former 】 The latter 】 the fact that the latter 】 the latter 】 the latter 】 the latter 】 the latter 】 the total amount omitted sales 】 the Plaintiff’s income subject to taxation, unless there are any special circumstances to the contrary 201.

Therefore, the plaintiff's above assertion about the estimation decision of this case, which is the premise for the disposition of global income tax in this case, and the tax base and maximum amount calculated thereby 】 】 recognition of the disposition of income as a result of disposition is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed. It is so decided as per Disposition.