A defect in the determination of a tax base and tax amount is found to be invalid, even if it is in accordance with the provisions or directives of the Enforcement Decree.

A defect in the determination of a tax base and amount of tax is found in accordance with the provisions or directives of the Enforcement Decree that are invalid, but it is not subject to the taxation of invalidation, but subject to the grounds for revocation.

Article 35 of the Framework Act on National Taxes

2014Return of unjust enrichment by 14700

AA

Republic of Korea 1

November 19, 2015

December 10, 2015

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

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

Cheong-gu Office

The Plaintiff shall pay 5% interest per annum from August 1, 201 to the delivery date of a copy of the instant complaint, 20% interest per annum from the following day to September 30, 2015, and 15% interest per annum from the following day to the day of full payment.

1. The following facts are acknowledged in full view of the records and the purport of the entire pleadings, such as the payment of global income tax and local income tax:

A. The Plaintiff was sentenced to 4 years, additional collection charge 63,00,000 won, and 63,000 won on the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on May 27, 2009.

B. The Plaintiff was sentenced to the dismissal of an appeal in the appellate court proceeding with Busan High Court Decision 2009No000, and the appellate court proceeding with the Supreme Court Decision 2009Do000, rendered a judgment dismissing the appeal, and the above judgment became final and conclusive on February 11, 2010. The Plaintiff paid KRW 63,000,000 as a surcharge on April 16, 2010 in accordance with the order to pay a penalty in accordance with the above final and conclusive judgment.

C. On July 1, 2011, the head of the tax office levied a total of KRW 12,921,580 on global income tax in 2007 and 2008 on the aggregate of KRW 1,330,910 on the same day on the grounds that the Plaintiff received KRW 63,00,000 from the Plaintiff’s income. The Kim Sea Mayor imposed a total of KRW 1,330,910 on the same day and imposed a total of KRW 1,330,910 on the same day, and the Plaintiff paid the said global income tax and local income tax on August 1, 201.

2. Summary of the plaintiff's assertion

The Plaintiff paid a surcharge of KRW 63,00,000 for the portion of acceptance of bribe to the Plaintiff, which became final and conclusive that the possibility of loss of economic benefits inherent in illegal income is realized and that income is not realized. Therefore, the first established tax liability has lost its premise. Therefore, the Defendants, according to the illegal taxation disposition, received the said tax amount and received unjust benefits without any legal cause. As such, Defendant Republic of Korea is obliged to pay the Plaintiff global income tax of KRW 12,921,580, and the local income tax of KRW 1,330,910, and damages for delay on each of the said money.

3. Determination

A. The purpose of confiscation or collection under the Criminal Act is to deprive a person of gains from a criminal act and prevent him/her from holding unjust profits. As such, if confiscation or collection has been made with respect to such illegal income, it constitutes realizing the possibility of loss of economic profits inherent in the illegal income. Therefore, in such a case, since income has not been ultimately realized, it is reasonable to deem that the basis for calculating the tax base and tax amount arises after the establishment of the tax liability to have been completed and that there has been a change in the calculation of the tax base and tax amount, so that the taxpayer may file a request for reduction by proving the relevant fact. In other words, even if the tax liability was established once it satisfies the taxation requirement of illegal income control and management, even if the possibility of loss of economic profits inherent in the illegal income such as confiscation or collection is realized after the occurrence of a triggerive cause, and thus becomes final and conclusive as not realizing the income, barring any special circumstance, a taxpayer may be released from the initial tax liability for correction claim stipulated in Article 45-2(2) of the Framework Act on National Taxes, etc.

B. Based on these legal principles, in a case where the Plaintiff paid KRW 00,000,00 in the instant case to the public health unit, and according to the criminal judgment finalized by the Plaintiff, the tax liability, which was initially established upon the confirmation of unlawful income such as confiscation or collection, loses its premise, and the Plaintiff may be exempted from the burden of tax liability by filing a subsequent request for correction as stipulated under Article 45-2(2) of the Framework Act on National Taxes. However, inasmuch as there was no gross or apparent error in the calculation of the tax base and the amount of tax on unlawful income such as bribe at the time of the initial taxation disposition, even if there was a change in the calculation of the said tax base and the amount of tax through the payment of the surcharge thereafter, it cannot be deemed that the initial taxation becomes null and void as a matter of course, and even if the tax authority imposed a tax disposition with the grounds for the additional

Therefore, insofar as the imposition of global income tax and local income tax is not automatically null and void, they shall not be subject to such taxation.

We cannot deem that the obligation to return unjust enrichment is established with respect to the payment of the tax amount, and even if the Plaintiff’s remedy is not possible through the revocation suit after the lapse of the period for filing a revocation suit regarding the said taxation disposition, it does not change.

Ultimately, the plaintiff's above assertion is without merit.

4. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.