[2] Legal deadline for payment of acquisition tax under the former Local Tax Act

[3] Legal time limit for payment of registration tax under the former Local Tax Act

[4] Whether priority relationship between additional dues and claims secured by mortgage, etc. under the former Local Tax Act shall be determined based on the payment period of additional dues itself, not with the principal tax payment period (affirmative)

[5] The "legal date" under Article 35 (1) 3 of the Framework Act on National Taxes in education tax

[2] According to Article 120 of the former Local Tax Act (amended by Act No. 4415 of Dec. 14, 1991), the statutory deadline for payment of acquisition tax, in principle, shall be 30 days from the date of acquisition of the object of taxation. However, the statutory deadline for payment of acquisition tax under the proviso to Article 86-3 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 13536 of Dec. 31, 1991) shall be 30 days from the date of occurrence of the cause of the application of the heavy tax rate. Therefore, if the heavy tax rate is applied to acquisition tax, the statutory deadline for payment of acquisition tax cannot be determined without confirming the requirements for the application thereof and the date of occurrence of the application thereof, and it cannot be concluded that the statutory deadline for payment of acquisition tax shall be 30 days from the date of acquisition of the object of taxation.

[3] In light of the purport of Articles 124, 130, and 151 of the former Local Tax Act (amended by Act No. 4415 of Dec. 14, 1991), Articles 90 and 91 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 13536 of Dec. 31, 191), the statutory due date for payment of registration tax on real estate shall be the time of registration. However, according to Article 138 (1) 3 and 4 of the same Act, Article 102 of the former Enforcement Decree of the Local Tax Act, the statutory due date for payment of registration tax on real estate shall be the time of establishment, establishment, and transfer of a juristic person in a large city, real estate registration taxes on real estate and real estate registration taxes on new establishment, establishment, and extension of a factory within five years after establishment, establishment, and transfer of a juristic person, the statutory due date for payment of registration tax shall not be determined within the statutory due date for acquisition and extension of registration tax.

[4] It is clear that Article 31(2)3 of the former Local Tax Act (amended by Act No. 4415 of Dec. 14, 191) provides that the priority relationship of claims secured by claims, mortgages, etc. with respect to local taxes under the law shall be based on the payment period of additional dues, i.e., the date on which additional dues accrue, rather than the payment period of principal taxes.

[5] According to Article 22(1) of the Framework Act on National Taxes and Article 10-2 of the Enforcement Decree of the Framework Act on National Taxes, the amount of education tax shall be determined at the time when the tax base and tax amount are reported to the Government. However, if the Government determines the amount of education tax, the amount of tax shall be determined at the time of determination. Thus, if a person liable to pay registration tax has reported the amount of registration tax, the statutory date for determining the priority relationship with secured claims such as mortgage pursuant to the proviso of Article 35(1)3(a) of the Framework Act on National Taxes shall be deemed the date of reporting. However, if a person liable to pay registration tax fails to report the amount of education tax, if the head of a Si/Gun/Gu determines the amount of tax in the same manner as local

1. Regarding the preferential relationship between the secured debt of the Plaintiff’s provisional registration security right and the acquisition tax and the registered tax claim of the Defendant Seoul Special Metropolitan City

A. According to the reasoning of the lower judgment, the lower court determined that: (a) the above-mentioned real estate was KRW 3,245 square meters (hereinafter referred to as “instant real estate”) for the payment period of KRW 15,00,000 for the above 40,000,000 for the first 70,000,000,000,000,000 KRW 16,000,000,000,000,000,000 KRW 9,000,000,000,00 KRW 1,5,000,000,000,000,00 KRW 1,5,000,000,000,000, KRW 1,66,000,00,000,000,000,000,000,00,000,00,00.

B. According to Article 17 of the Provisional Registration Security Act, a provisional registration security right is considered as a mortgage in the application of the Framework Act on National Taxes and the Local Tax Act. Thus, Article 31(2)3 of the former Local Tax Act provides that "the payment deadline" refers to the statutory payment deadline stipulated in the tax law in the local tax in the method of tax return such as acquisition tax and registration tax, as well as the local tax in the method of tax return (see, e.g., Supreme Court Decisions 93Da47349, Jan. 25, 1994; 94Da53365, May 23, 1995; 96Da31697, Sept. 4, 1998).

However, according to the provisions of Article 120 of the former Local Tax Act, any person who acquires objects of taxation of acquisition tax shall file a voluntary declaration within 30 days from the date of acquisition and pay the tax amount calculated by applying the tax rate under the provisions of Article 112 to the reported tax base amount. However, after acquiring objects of taxation of acquisition tax, if objects of taxation are subject to heavy tax rate under the provisions of Article 112 (2) or (3), such as villa, land for non-business use of a corporation, business property to newly establish and expand a factory in a large city, the amount of tax calculated by applying the above heavy tax rate shall be paid within 30 days from the date prescribed by the Presidential Decree. Article 86-3 of the former Enforcement Decree of the Local Tax Act (amended by the Presidential Decree No. 13536 of Dec. 31, 191; hereinafter the same shall apply) separate the date of application of the above heavy tax rate from the date of imposition and payment period under the provisions of the proviso of Article 120 of the same Act from the above date of acquisition tax and payment period.

In addition, in full view of the purport of Articles 124, 130, and 151 of the former Local Tax Act, and Articles 90 and 91 of the former Enforcement Decree of the Local Tax Act, the statutory time limit for payment of registration tax on real estate shall be the time of registration. However, according to Article 138 (1) 3 and 4 of the same Act, and Article 102 of the Enforcement Decree of the same Act, real estate registration on real estate acquired within five years from the establishment, establishment, establishment, and transfer of a juristic person in a large city, real estate registration on real estate and factory establishment and factory extension, which are acquired within five years after the establishment, establishment, establishment, and transfer of the juristic person, the heavy taxation rate of registration tax on real estate acquisition is applied unless the requirements for establishment, establishment, transfer, or factory establishment of a juristic person in a large city and the requirements for registration of acquisition of real estate are met. Therefore, the statutory time limit for payment can not be determined without the application of registration tax.

On the other hand, according to the facts and records acknowledged by the court below, the non-party company which acquired and registered the real estate of this case is a juristic person, the above real estate is located in Seoul, which is a large city, and the bid price of this case is 4,816,90,00 won, and the acquisition tax of this case except for the additional dues is 646,454,410 won, which exceeds 13% of the bid price. The registration tax of this case exceeds 593,127,140 won, and the registration tax of this case exceeds 12% of the bid price. Thus, it is evident that the acquisition tax of this case and registration tax of this case are applied with heavy taxation rate. Thus, the court below should have determined the relation between the above acquisition tax and registration tax of this case which the Seocho-gu office imposed and the registration tax of this case as well as the point of time to meet it, and then should have determined the relation between the above acquisition tax and registration tax of this provisional registration.

Therefore, the court below determined that the payment period of the acquisition tax of this case was 30 days from the date of acquisition of the real estate of this case, and the payment period of the registration tax of this case was the registration date, and that the above claim of the acquisition tax and the registration tax of this case was priority over the secured claim of the plaintiff's provisional registration security right, without examining the excessive requirements of the acquisition tax and the registration tax of this case, it erred by misapprehending the legal principles on the statutory payment period of the acquisition tax and the registration

C. Meanwhile, it is clear that Article 31(2)3 of the former Local Tax Act provides that the priority relationship of claims secured by additional dues and mortgages, etc. with respect to local taxes shall be based on the payment period of additional dues, i.e., the date of the occurrence of additional dues, rather than the payment period of principal taxes (see Supreme Court Decision 97Da8939, Apr. 27, 199). Thus, the lower court should determine when the date of occurrence of additional dues with respect to the acquisition and registration taxes of this case and compare the date of occurrence thereof with the date of establishment of the provisional registration security right of this case.

Nevertheless, the judgment of the court below that determined the priority relationship between each additional claim of the above acquisition tax and the registration tax based on the payment period of the principal tax and the acquisition tax in this case, and the secured claim of the provisional registration security right, is erroneous in the misunderstanding of legal principles as to the priority relationship between the secured claim of the additional claim of local tax and the provisional registration security right

2. As to the secured claim of the Plaintiff’s provisional registration security right and the education tax claim of the Defendant Republic of Korea

Under Article 35 of the Framework Act on National Taxes (amended by Act No. 4277, Dec. 31, 1990; hereinafter the same) on the premise of the facts acknowledged as above, the court below determined that the education tax, a national tax, should be friendly with mortgage, etc. on the basis of the statutory date stipulated in the same Article. The payment period of the registration tax of this case is clear that the non-party company acquired the real estate of this case and that the statutory date of the education tax based on the registration tax of this case is the same day as the education tax base of the registration tax of this case. Thus, the education tax and its additional dues based on the registration tax of this case are the same day before the statutory date of establishment of the provisional registration security right of the plaintiff, and therefore the above education tax and its additional dues are correct.

However, according to Articles 3 subparag. 4, 9(2), and 10 of the Education Tax Act (amended by Act No. 4279, Dec. 31, 1990; hereinafter referred to as the "Education Tax Act"), a taxpayer of registration tax under the provisions of the Local Tax Act shall report and pay the registered tax when he files a return on and pays the registered tax under the provisions of the Local Tax Act, and if the education tax is not reported and paid, the head of the Si/Gun or the public official delegated by him shall impose and collect the registered tax in the same manner as the local tax is levied and collected. According to Article 22(1) of the Framework Act on National Taxes and Article 10-2 of the Enforcement Decree of the Framework Act on National Taxes, the tax base and tax amount shall be determined at the time of filing the report with the Government, but the tax amount shall be determined at the time of determining the registered tax amount. Thus, if a taxpayer of registration tax files a return on the registered tax amount with respect to the registered tax amount, the statutory tax amount shall be deemed the date of return or tax amount.

Nevertheless, the lower court determined otherwise on the same day as the payment period of the instant registration tax recognized by the lower court, and held that the Plaintiff’s provisional registration security was prior to the date of establishment of the Plaintiff’s provisional registration security right. In so doing, the lower court erred by misapprehending the legal doctrine on statutory due date as stipulated in Article 35(1)3 proviso of the Framework Act on National Taxes

In addition, Article 1 of the Addenda to the revised Education Tax Act provides that "this Act shall enter into force on January 1, 1991," and Article 4 provides that "this Act shall apply from the date of initial registration or enrollment after the enforcement of this Act." Meanwhile, the former Education Tax Act (amended by Act No. 4279 of December 31, 1990) does not provide that the person liable for registration tax shall be one of the persons liable for registration tax. Thus, if the registration of ownership transfer of the non-party company's name related to the real estate was made on November 6, 1989 before the enforcement date of the revised Education Tax Act, it is not likely to impose education tax on the person liable for registration tax following such registration, and therefore, even if the Seocho-gu Office imposed the above education tax on the non-party company, the disposition of imposition shall be deemed as invalid because the defect is significant and apparent, and if the registration price and the additional tax were not received from the original tax base based on the invalid real estate in this case.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the case.

Justices Cho Cho-Un (Presiding Justice)