[손해배상(기)][공2008하,1582]
[1] In a case where a corporation, which had its head office or branch office in a large city, acquires real estate with the intention to use it as a branch office, etc. five years after the establishment, the time when the registration tax imposition requirement under the former part of Article 138(1)3 of the former
[2] The scope of a certified judicial scrivener entrusted with the affairs of reporting and paying registration tax, etc. and the degree of his/her duty of care
[1] In the case of the "real estate registration after the establishment, establishment, and transfer of a corporation or a branch, etc." under the latter part of Article 138 (1) 3 of the former Local Tax Act (amended by Act No. 6852 of Dec. 30, 2002), the requirements for heavy registration tax at the time of the real estate registration are met, and the requirements for heavy registration tax are met, but the requirements for heavy registration tax under the former part of Article 138 (1) 3 of the same Act are met only when the establishment, establishment, and transfer of the corporation or the branch, etc. are met, and the heavy tax liability occurs. Thus, in the case where a corporation which established the main office or the branch office in a large city acquires real estate with its intention to use it for a branch, etc. five years after its establishment, registration tax and education tax shall be paid at the time of the general real estate registration, and thereafter, when the branch, etc. is established, the amount of heavy registration tax shall be reported and paid within 30 days
[2] Where a certified judicial scrivener is delegated with the affairs of applying for registration of ownership transfer of real estate and the affairs of filing and paying registration taxes accordingly, the scope of delegation of affairs of a certified judicial scrivener shall be calculated by calculating the accurate amount of registration tax to be filed and paid at the time of real estate registration based on the taxation data delivered by a delegating person, such as a certified transcript of corporate register, approval certificate sales contract, land cadastre and building register, related receipts, etc. Furthermore, whether the delegating person establishes a new branch, etc. after ascertaining whether the delegated person establishes a new branch, etc. after the relevant real estate registration, and the delegating person examines whether the former Local Tax Act (amended by Act No. 6852, Dec. 30, 2002) is subject to heavy registration tax under the former part of Article 138 (1) 3 of the Local Tax Act (amended by Act No. 6852, Dec. 30, 2002) and explain to the delegating person that the delegated person should not voluntarily report and pay the amount of registration tax, etc. within 30 days from the date of establishment.
[1] Articles 138(1)3 and 150-2(2) of the former Local Tax Act (amended by Act No. 6852 of Dec. 30, 2002); Article 104-2(2) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 18194 of Dec. 30, 2003) / [2] Articles 2(1) and 30 of the Certified Judicial Scriveners Act; Article 681 of the Civil Act; Articles 138(1)3 and 150-2(2) of the former Local Tax Act (amended by Act No. 6852 of Dec. 30, 2002)
[1] Supreme Court Decision 97Nu9253 delivered on October 14, 1997 (Gong1997Ha, 3524) Supreme Court Decision 2003Du7620 Delivered on April 27, 2006 (Gong2006Sang, 961)
[Defendant-Appellee] Korea Freight Trucking Association (Law Firm Doz., Attorneys Jeong-soo et al., Counsel for defendant-appellee)
Defendant (Attorney Kim Jae-mo, Counsel for defendant-appellant)
Seoul High Court Decision 2005Na96681 Delivered on December 7, 2006
The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s supplementary appeal is dismissed.
The Defendant’s grounds of appeal and the Plaintiff’s grounds of incidental appeal are also examined.
1. According to the reasoning of the judgment below, the court below found that the plaintiff was obligated to report and pay additional tax on October 5, 202 to the plaintiff 2, 201-7, 281-8, 281-9 and its ground (the total of 1,567.2 and 1,702.24; hereinafter "the real estate of this case") 5 billion won and 600,000,000 won for the establishment of the above 3-6-6-6-6-6-6-6-6-6-6-6-6-6-6-6-6-6-6-6-6-6-6-6-6-6-6-6-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-77-77-7-77-7-7-7-7-7-7-77-77-777-7-777777777-7-77-7-7-7-77-777.
2. However, we cannot accept the judgment of the court below for the following reasons.
Article 138 (1) 3 of the former Local Tax Act provides that the requirements for heavy registration tax shall be met at the time when the establishment, establishment, and transfer of a corporation or a branch, etc. is subject to the imposition of heavy registration tax (see Supreme Court Decision 2003Du7620, Apr. 27, 2006). However, the requirements for heavy registration tax in the former part of Article 138 (1) 3 of the same Act are met only when the establishment, establishment, and transfer of a corporation or a branch, etc. are required after the registration of real estate, and the liability for heavy registration occurs (see, e.g., Supreme Court Decision 97Nu9253, Oct. 14, 1997); Article 150-2 (2) of the same Act provides that the object of taxation at the time of establishment of the main office and the amount of registration tax shall be deducted from the amount of registration tax to be paid within 30 days before the date of establishment or transfer of the main office and 1304 days after the date of establishment.
In light of the above legal principles and the records, since the plaintiff established a gas station and other place of business after the registration of ownership transfer of the real estate of this case, the defendant entrusted the business of ownership transfer registration for the real estate of this case and the business of reporting and paying registration tax, etc. to the plaintiff, and confirmed that the plaintiff acquired the real estate of this case for five years after the establishment and establishment of the head office or branch office of this case and is not subject to heavy registration tax under the latter part of Article 138 (1) 3 of the former Local Tax Act, and that the registration tax rate for the acquisition of the real estate of this case shall be 30/1,00, the general tax rate for the registration tax of this case shall be 30
Meanwhile, in light of the scope of affairs of a certified judicial scrivener prescribed in Article 2 of the Certified Judicial Scriveners Act and the purpose and circumstances of delegation, etc., the scope of delegation of affairs by proxy, such as the Defendant’s registration tax, shall be deemed to include the Plaintiff’s voluntary declaration and payment within 30 days from the date of establishment of a branch, etc. under Article 150-2 (2) of the former Local Tax Act by calculating the accurate amount of registration tax to be reported and paid at the time of real estate registration based on the Plaintiff’s taxation data, such as a certified copy of corporate register, approval certificate sales contract, land cadastre and building register, and related receipts, etc. The Plaintiff’s report and payment by proxy shall be deemed to have been made by proxy to the tax authorities. In addition, it is reasonable to consider that the Plaintiff’s legal review as to whether the establishment of a new branch, etc. after the said real estate registration is established and that the Plaintiff does not include an obligation to report and pay additional tax, etc. under Article 150-2 (2) of the same Act.
Nevertheless, the lower court partially accepted the Plaintiff’s claim for damages on the ground that there was negligence as indicated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine on the time when the requirements for imposition of registration tax under Article 138(1)3 of the former Local Tax Act are established and the degree of duty of care required in the vicarious performance of duties, such as registration tax and registration tax of a certified judicial scrivener. The Defendant’s ground of appeal assigning this error is with merit, while the Plaintiff’s ground of incidental appeal premised on the Defendant’s liability for damages is without merit
3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s incidental appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)