Plaintiff (Law Firm Changcheon et al., Counsel for the plaintiff-appellant)

Korea

October 24, 2019

Seoul Central District Court Decision 2018Gahap4210 Decided December 7, 2018

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

With respect to KRW 2,207,576,184 and KRW 312,459,720 among the Plaintiff, the Defendant shall pay 5% per annum from October 1, 2013 to November 21, 2018, and 15% per annum from the following day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. 10% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 2,207,576,184 won with 5% interest per annum from October 1, 2013 to the delivery date of a copy of the complaint of this case and 15% interest per annum from the next day to the day of complete payment.

1. Basic facts

(a) Status of parties;

Busan Forest Purchase Co., Ltd. (hereinafter referred to as "Tlim Purchase Co., Ltd.") was liquidated on September 30, 2008 after transferring Indonesia-related business on December 8, 201, as a company that engages in the business of providing domestic and foreign manufacturers with the purchase services for products produced by Naki (hereinafter referred to as "Naki") to the Naki, a corporate entity of the United States of America (hereinafter referred to as "Naki").

The plaintiff was the representative director and the largest shareholder of the vice purchase and vice versa.

B. bonus disposal, etc. for the plaintiff

1) While engaging in a garment purchase agency business, the sales amounting to KRW 5,281,19,49,491, the sales amounting to KRW 261,967,776, the sales amounting to KRW 137,068,235, the sales amount of KRW 94,684,213, the sales amount of KRW 94,684,213, the sales amount of KRW 559,84,685, the sales amount of KRW 7,184,765,400, the sales amount of KRW 200, the sales amount of KRW 206, the sales amount of KRW 137,06,235, and the sales amount of KRW 94,684,65,400

2) From April 2008 to June 20 of the same year, the vice purchase deposited money in the account of Nonparty, an employee in charge of the vice purchase, who is an employee in charge of the vice purchase, deposited the said money in several times, and deposited the money again into the account of vice purchase via another account (e.g., the Plaintiff’s account in the name of the Plaintiff or the account of the vice purchase, e.g., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e.

3) From April 2008 to June 2008, the time of the withdrawal, the head of the Seocho District Tax Office under the Defendant’s jurisdiction deemed that the said amount deposited from the account for forest purchase ( deemed as KRW 7,184,765,400) was out of the company from April 13, 2013, and that the said amount was unclear, the head of the Seocho District Tax Office disposed of the said amount as the bonus to the Plaintiff on May 13, 2013 and notified the Plaintiff of the change in the amount of income on July 9, 2013.

C. Plaintiff’s request for correction

On September 30, 2013, the Plaintiff reported the comprehensive income tax for the year 2008 following the change in the amount of income to the head of Seocho District Tax Office, and paid the additional tax amount of KRW 2,390,684,490 (hereinafter “instant return and payment”). The Plaintiff filed an application for correction seeking refund of KRW 2,367,40,000 out of the additional tax amount paid after the Plaintiff filed an application for rectification, but the head of Seocho District Tax Office rejected the application.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 7, 8, Eul evidence Nos. 1, 2 and 3, the purport of the whole pleadings

2. Judgment on the main defense of this case

The defendant argues to the effect that "the plaintiff can only file an appeal against the rejection disposition against the global income tax payment claim by means of filing an appeal against the rejection disposition against the global income tax payment claim, and it is not possible to seek a return of unjust enrichment from the global income tax amount already paid by means of civil

However, global income tax is a tax return method, and where a taxpayer’s filing act is void automatically due to a grave and apparent defect, the tax amount paid by the taxpayer constitutes unjust enrichment (see Supreme Court Decision 2004Da64340, Jan. 13, 2006). It is reasonable to view that the taxpayer can file a claim for refund as a civil lawsuit seeking the return of unjust enrichment. The Defendant’s main defense against safety is not acceptable.

3. Judgment on the merits

A. The plaintiff's assertion

The exclusion period for imposition of global income tax has already been set out in each business year for each of the total amount of KRW 7,184,765,40,00, which was omitted without recording in the account book among sales on the age limit of 2008, and KRW 6,634,46,842, which was accrued before 207, was falsely counted in the account for deposits on foreign currency (debt). Since the exclusion period for imposition of global income tax is five years, the Plaintiff’s bonus income from 2004 to 2007 at the time of the return and payment of the instant tax had already been set out in the exclusion period for imposition, and the return and payment of the instant tax on the income with the exemption period for imposition is null and void due to significant and apparent defects. Nevertheless, the Defendant is obligated to return the Plaintiff’s additional global income tax from 2004 to 207 to 207 to 207, and to pay only the amount of KRW 2,360,4781,2088.

B. Determination

1) Relevant legal principles

The global income tax is a tax in the form of tax return, in principle, the taxpayer's duty to pay taxes is determined specifically by determining the tax base and the amount of tax, and the payment act is the performance of the specific duty to pay taxes confirmed by the return, and the local government holds the tax amount paid based on the final tax claim as above. Thus, insofar as the act of the taxpayer's return does not automatically become null and void due to a significant and apparent defect, it cannot be deemed as unjust enrichment. Here, as to whether the act of the taxpayer's return constitutes void as a matter of course due to a significant and apparent defect, the purpose, meaning, function, and legal remedies for the act of the return should be examined as a basis for the act of the return, and the specific circumstances leading to the act of the return shall be determined reasonably by individually and reasonably (see Supreme Court Decisions 94Da31419, Feb. 28, 1995; 2004Da64340, Jan. 13, 2006, etc.).

2) Whether there is a defect in the report and payment of the instant case: The time of outflow from the company

The report and payment of this case are premised on the fact that all of KRW 7,184,765,40, which was deposited in the account of the Nonparty from April 2008 to June 2008 at the time of its withdrawal, was subject to the Plaintiff’s obligation to pay global income tax. However, in light of the following circumstances acknowledged by comprehensively taking into account the aforementioned basic facts and the overall purport of the pleadings, it is reasonable to view that the total of KRW 7,184,765,400, which was omitted from sales from 2004 to 2007, was already released before 2008, and therefore this part of the global income tax was subject to the exclusion period for imposition of global income tax at the time of the report and payment of this case. Nevertheless, since the Plaintiff reported and paid this case in accordance with the disposition of the head of Seocho Tax Office’s income, it should be deemed that there was a defect in the report and payment of this case.

A) In a case where a corporation fails to enter its sales in the account book despite a fact of sales despite the fact of sales, the total amount omitted from sales shall be deemed to have been leaked out, except in extenuating circumstances (see Supreme Court Decisions 93Nu630, May 14, 1993; 2000Du3726, Jan. 11, 2002, etc.).

In light of the above legal principles, the amount omitted in sales should be deemed to have been released from secondary purchase at the time of omission of sales, barring any special circumstance, the cash and cash assets of secondary purchase from 2005 to 261, 967, 776 won, and 137,068, 235 won of sales from 206 to 2006, and the sales from 94,684,213 won of sales from 207 to 2007 to the account for deposits for foreign currency goods (debts) that are not the sales account. In light of the above legal principles, the amount omitted in sales should be deemed to have been released from secondary purchase at the time of omission of sales. The amount of cash and cash assets of secondary purchase from 2005 to 2005 significantly decreased (written evidence No. 6).

B) The Defendant asserted that “The sales volume before 2007 was falsely appropriated on the deposit account for foreign currency goods (debts) and reserved the amount omitted in sales, and then withdrawn only from April 2008.” However, it is insufficient to acknowledge the Defendant’s assertion solely on the part of the evidence No. 4 (Tax Tribunal’s decision). However, there is no other evidence to acknowledge this otherwise.

Rather, most of the money deposited to the Nonparty during the above period was immediately deposited in the account of forest purchase. The amount of each of the above deposits and withdrawals does not exceed KRW 530,00,000,000. In other words, it is merely repeated that the amount of money deposited to the account of forest purchase was deposited again during the above period (as to the reasons, the Plaintiff asserted that the amount counted in the deposit deposit account of forest purchase was to be transferred to the account of forest purchase, and the actual amount was counted in most of the above money), and it is difficult to view that the amount of KRW 7,184,765,40 was discharged from the account of forest purchase at the time of withdrawal of each of the above amounts.

In addition, among KRW 7,184,765,40 claimed that the Defendant was released from the Nonparty during the said period, the details of the deposit indicated as “transfer / KEB but / Nonparty” and “transfer / Nonparty” are many (see the evidence No. 7). This appears to be the amount deposited from other accounts of the Nonparty. However, it is difficult to view that the Nonparty paid and paid money between the Nonparty’s own accounts, and it is particularly difficult to view that the Nonparty was out of the company of secondary forest purchase.

C) According to Article 26-2(1)3 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014), the exclusion period for imposition of global income tax is five years. In addition, when a disposition of income is taken against a person to whom the income accrues, the liability to pay global income tax ( earned income tax) on the person to whom the income accrues shall be established at the time when the taxable period to which the income accrues expires as prescribed by Article 21(1)1 of the former Framework Act on National Taxes (amended by Act No. 16097, Dec. 31, 2018) (see Supreme Court Decision 2004Du9944, Jul. 27, 2006). The exclusion period for imposition of global income tax is six months following the taxable period from which the person to whom the global income tax accrues belongs is one of six months following the following year (Article 12-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes and Article 70(1).

Ultimately, the exclusion period of imposition of total of KRW 7,184,765,40 from 2004 to 2007 has expired at the expiration of five years from June 1 of the year following the year 2004 to 2007, which was the taxable period in which the pertinent income was reverted. Accordingly, the exclusion period of imposition of global income tax on each of the above incomes has expired at the latest on June 1, 2013.

3) Whether the defect in the instant declaration and payment is significant and obvious

In full view of the following circumstances, the return and payment of this case are the return and payment of global income tax on the income for which the exclusion period of imposition expires, and the defect is serious, as well as obvious and invalid.

A) Where national taxes are not imposed during the period during which a national tax can be imposed pursuant to Article 26-2 of the Framework Act on National Taxes, the taxation authority may not impose any disposition as a matter of principle as well as the imposition disposition, and the tax obligation itself is extinguished (see, e.g., Articles 26 subparag. 3 and 26-2 of the Framework Act on National Taxes, and Supreme Court Decisions 200Du6657, Sept. 24, 2002). Nevertheless, if a disposition of imposition is taken, the effect is null and void (see Supreme Court Decisions 99Du3140, Jun. 22, 1999; 2003Du1752, Jun. 10, 2004).

In this case, the Plaintiff filed the instant return and payment after the disposition of income by the head of the Seocho District Tax Office, but the Plaintiff filed the instant return and payment in accordance with the notice of change in the amount of income to the Plaintiff by the head of the Seocho District Tax Office. Thus, there is no reason to treat the instant return and payment differently from the case where the comprehensive income tax was paid upon the disposition of imposition (see Supreme Court Decisions 97Da20373, Dec. 12, 1997; 2009Da5001, Apr. 23, 2009, etc.).

B) Furthermore, in a case where an administrative disposition was taken by applying the provisions of a certain Act to a certain legal relationship or fact-finding, the legal doctrine clearly stating that the provision of the law is not applicable to such legal relationship or fact-finding, or the meaning of the affirmative or passive requirement in the language and text of the provision of the law is clear, but the administrative agency erred in interpreting the meaning without a reasonable ground, thereby failing to satisfy the affirmative or passive requirement, or if the pertinent disposition was taken without satisfying the passive requirement, it can be deemed that the defect is objectively apparent (see Supreme Court Decision 2011Du3746, Mar. 20, 201

The Supreme Court Decision 93Nu630 delivered on June 22, 1999 held that "where a corporation fails to enter its sales in an account book despite the fact of sales, the total amount omitted from sales shall be deemed leaked, barring any special circumstances, barring any special circumstance," the above legal doctrine has been established by repeating the same purport. Furthermore, the audit report on the purchase of a forest or the account details of the non-party (Evidence A6 and 7) fall under the basic data for ascertaining the outflow of the purchase of a forest, it is highly probable that the head of Seocho District Tax Office had already grasped the facts as seen earlier. Accordingly, it is difficult to deem that the head of Seocho District Tax Office had any circumstance that could mislead the person to believe that the report and payment of this case was subject to taxation.

4) Occurrence of unjust enrichment

Ultimately, even though the return and payment in this case are null and void, the Defendant was obligated to return unjust enrichment of KRW 2,207,576,184 from the Plaintiff on September 30, 2013. As such, the Defendant is obligated to return to the Plaintiff unjust enrichment of KRW 2,207,576,184. Therefore, as for KRW 2,207,576,184 and KRW 312,459,720 from the date of delivery of a copy of the complaint in this case, the Defendant’s claim for unjust enrichment of KRW 208,16,464 from the date of delivery to the Plaintiff on which the extension of the claim was served to the Plaintiff on KRW 15,200,000 from the date of delivery to the Plaintiff, and it is clear that the Plaintiff’s claim for unjust enrichment of KRW 2,57,16,464 from the date of delivery to the Defendant on September 28, 2018, to the extent of its claim No. 15.

3. Conclusion

Thus, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, part of the plaintiff's appeal shall be accepted, and the part against the plaintiff corresponding to the above order of payment among the judgment of the court of first instance shall be revoked, and the payment of the amount shall be ordered to the defendant, and the remaining appeal by the plaintiff

Judges Namyang-yang (Presiding Judge)