2. The defendant shall pay to the plaintiff 101,867,364 won with 5% interest per annum from March 24, 2007 to April 24, 2009 and 20% interest per annum from the next day to the day of full payment.

3. The plaintiff's remaining claims are dismissed.

4. All costs of the lawsuit are borne by the Defendant.

ex officio, according to the records of this case, the court of first instance violates Article 204 of the Civil Procedure Act that "the court of first instance must put a judge who has participated in the pleading in addition to the judge's transfer to ○, the judge's gambling, and the judge's Kim ○," although the court of first instance participated in the pleading on June 28, 2007 and concluded the pleading, it is evident that the court of first instance has signed and sealed it." This constitutes "the court of first instance is in violation of Article 204 of the Civil Procedure Act that "the procedure of the court of first instance is in violation of the law," so the court of first instance should revoke the judgment pursuant to Article 417 of the Civil Procedure Act, and shall be new judgment."

2. Case summary and relevant facts on the premise of the case

A. Case summary

This case is a matter of seeking a payment of the difference between the amount paid according to the preliminary return and the calculated tax pursuant to the final return as a return of unjust enrichment to the defendant on the ground that the tax amount already paid exceeds the amount calculated according to the final return, by the Plaintiff’s transfer of land, and making a preliminary return of the tax base of transfer income for such transfer by voluntarily paying the tax base lower than

B. Presumed factual basis

The following facts may be acknowledged by adding up the whole purport of the pleadings to the items of evidence Nos. 1 through 5, evidence No. 6-1 through 4, evidence No. 1, and evidence No. 3:

(1) On October 7, 2005, the Plaintiff entered into a sales contract between ○○ Housing Co., Ltd. (hereinafter “○○ Housing”) and ○○ Housing (hereinafter “○○ Housing”) with a content that the Plaintiff would remove the buildings on the instant land from KRW 19.5 million, and completed the registration of ownership transfer on October 27, 2005, the Plaintiff completed the registration of ownership transfer on ○ Housing (hereinafter “○ Housing”).

(2) On December 7, 2005, the Plaintiff calculated the transfer income amount as to the transfer of the instant land to the director of the Gangnam Tax Office (hereinafter referred to as the “director of the Gangnam Tax Office”) affiliated with the Defendant at KRW 3,240,375,580, and made a preliminary return on the tax base of transfer income calculated based thereon, and paid KRW 1,096,238,440 (the sum of the tax amount already paid and the tax amount imposed by the director of the Gangnam Tax Office).

(3) On May 29, 2006, the Plaintiff filed a final return on the tax base of transfer income calculated by calculating the transfer income amount of the instant land as KRW 2,957,410,658, which was deducted by adding it to the necessary expenses, on the ground that the Plaintiff removed the instant land building after the preliminary return on the tax base of transfer income.

(4) The Plaintiff demanded the head of Gangnam District Tax Office to refund the difference between the amount of tax to be voluntarily paid by the Plaintiff based on the tax base of tax base at the time of the final return, and the amount of tax to be paid by the Plaintiff is KRW 994,371,076, and the amount of tax to be paid by the Plaintiff is 1,096,238,440, which was paid in excess at the time of the final return. However, the head of Gangnam Tax Office reviewed the Plaintiff’s request for correction and on the ground that “the value of the Plaintiff’s demolition of the building does not constitute necessary expenses

3. Plaintiff’s assertion and judgment thereon

A. The plaintiff's assertion

Even if the Plaintiff had already made a preliminary return on the tax base of transfer income, the tax base and the payable tax amount of the land of this case are finalized by the final return. Thus, as long as the amount paid by the Plaintiff’s preliminary return exceeds the amount determined as above, the Plaintiff asserts that the excess amount constitutes unjust enrichment and sought payment of KRW 101,867,364, the excess amount as the return of unjust enrichment against the Defendant.

B. Determination

In full view of the following facts: (a) capital gains tax is subject to the principle of fixed-term taxation; and (b) a specific tax liability becomes final by calculating the tax base and the amount of tax on capital gains generated during the pertinent taxable period and filing a comprehensive return; (c) where a preliminary return on the tax base of capital gains falls under the proviso to Article 110 (4) of the Income Tax Act; (d) where a preliminary return on the tax base of capital gains falls under Article 173 (4) 1 through 3 of the Enforcement Decree of the Income Tax Act, a final return on the tax base of capital gains tax must be filed; and (d) where a taxpayer files a final return on any different content after filing a preliminary return, the tax base and the amount of tax temporarily finalized by such preliminary return shall be integrated into the tax base and the amount of tax determined by the final return (see Supreme Court Decision 206Du1609, May

In light of the above legal principles, the preliminary return of tax base of transfer income originally filed by the Plaintiff was incorporated into and extinguished in the final return of tax base of transfer income thereafter, and the Plaintiff’s obligation to pay capital gains tax was determined by the said final return. Therefore, the portion (=1,096,238-40 won) in excess of the amount determined by the final return (94,371,076 won) out of the amount paid by the preliminary return (=1,09,867,364 won) (=1,096,238,40 won-238,440 won-94, 371,076 won) shall be returned to the Defendant for unjust enrichment.

In the appellate brief, etc. of this case, the defendant asserted that the excess amount is not unjust enrichment since the tax base and tax amount finalized by the above final return are insufficient and extinguished by making a decision of correction of capital gains tax correction on August 16, 2006. However, according to the records of this case, the defendant only recognized the fact that the defendant made a final return of tax base of the plaintiff on August 16, 2006 as a request for correction and notified that he would refuse to make a final return of tax base of the transfer income, and it cannot be viewed as a decision of correction of capital gains tax because he did not specify the tax base and tax amount before and after the decision of correction, and there is no evidence to support that the defendant made a decision of correction of tax base of the plaintiff on the final return of

Therefore, as to the above unjust enrichment amounting to KRW 101,867,364 and the above amount, from March 24, 2007, the following day after the delivery date of a copy of the complaint of this case (the plaintiff claimed damages for delay from 30 days after the final return date of the tax base return of transfer income pursuant to Article 51 (1) and (5) of the Framework Act on National Taxes, but the above provisions of the Framework Act on National Taxes apply to cases where the national tax refund was determined. Therefore, the above provisions of the Framework Act on National Taxes are not applied to this case, and as long as there is no evidence to prove that the plaintiff claimed for the return of the above unjust enrichment against the defendant before the delivery of the copy of the complaint of this case, the defendant is liable to pay damages for delay at the rate of 5% per annum from the day after the above delivery date of the copy of the complaint of this case to April 24, 2009, and 20% per annum from the next day to the day of complete payment.

4. Conclusion

The decision of the court of first instance is revoked ex officio in violation of the law, and the plaintiff's claim of this case is reasonable within the scope of the above recognition. It is so accepted in part and decided as per Disposition.