A tax filing and Unjust Enrichment lawsuit



Supreme Court Decision 98Da47184 delivered on February 25, 2000

 

 

1. Summing-up

 

ⓐ The plaintiff(the Korea Broadcasting System) filed the value-added tax amount by deducting the input tax amount for the commercial broadcasting by calculating the proportionate ratio of the revenue from the advertising fees to the aggregate revenue (i.e., the aggregate sum of the revenue from advertising fees and receiving fees, etc.), without dividing and confirming the portion associated with the advertising business.

ⓑ The plaintiff paid the value-added tax examined in this case without any reservation until it was indicated during the National Assembly's annual inspection for the year 1993 that the payment of the corporate tax was improper which led to the filing of this suit.

 

2. Judgment of Supreme Court

 

ⓐ In the type of taxes paid by reporting and filing by the taxpayer such as the value-added tax, the tax obligation is formatively confirmed by the act of the taxpayer reporting and filing its own tax base and the tax amount, and the payment of the tax amount is deemed to be a performance of the tax obligation formatively confirmed by such reporting.

ⓑ The national or municipal governments retain the tax amount paid based on the tax claim confirmed by the above procedure.

ⓒ Therefore, unless the tax filing of the taxpayer is null and void due to a material and clear defect, it cannot be forthwith deemed as unjust enrichment.

ⓓ In considering whether a tax filing is null and void due to a material and clear defect, a reasonable judgment must be made upon teleological review of the purpose, significance and function of the regulation under which the tax filing has been made and the available remedies for the defective tax filing as well as a case-by-case consideration of the circumstances leading to the tax filing.

ⓔ The plaintiff did not distinguish the profit-making business and other businesses in its accounting.

ⓕ The plaintiff's filing of the value-added tax amount is illegal.

ⓖ However, it is an open question of the construction of law whether the first sentence of Paragraph 1 of Article 61 of the former Enforcement Decree to the Value-Added Tax Act can be applied by analogy to the case where the taxable and non-taxable businesses are concurrently conducted.

ⓗ It is difficult to regard the above defect as overtly clear.

ⓘ Therefore, the tax filing at issue in this case was not null and void per se.

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