[취득세등부과처분취소][공2000.11.1.(117),2145]
[1] The nature of a lawsuit to confirm the existence of a tax liability (=party suit) and the eligibility for the defendant (=party subject of rights such as the State and public organization)
[2] Where the Gu (Gu) paid the Special Metropolitan City tax after receiving a report on the acquisition tax (=the Special Metropolitan City) and the Gu (Special Metropolitan City) paid the special rural development tax to the National Treasury after receiving a report in addition to the acquisition tax, which is a local tax (=the State)
[1] A lawsuit seeking confirmation of existence of tax liability is a lawsuit seeking dispute over the legal relationship itself under the public law, and thus a party suit is instituted. Thus, the State, public entity, and other rights parties to the legal relationship under Article 3 subparag. 2 and Article 39 of the Administrative Litigation Act have the standing to be the defendant.
[2] In full view of Article 6 (1) 1 (a) and Article 53 of the former Local Tax Act (amended by Act No. 5406 of Aug. 30, 1997) and Article 41 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15489 of Oct. 1, 1997), the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15489 of Oct. 1, 199) paid acquisition tax after reporting to the Special Metropolitan City is merely a performance of the affairs of the Special Metropolitan City and the Gu is paid to the Special Metropolitan City, so even if the Gu is paid acquisition tax due to reporting to the Special Metropolitan City, the entity to whom acquisition tax belongs shall be the Special Metropolitan City. In full view of Article 2 subparagraph 1 (o) of the Framework Act on National Taxes, Article 3 subparagraph 5, Article 5 (1) 6, Article 7 (4) and (5), Article 10 (1) and (2) of the Enforcement Decree of the same Act, the State's special rural development tax.
[1] Articles 3 subparag. 2 and 39 of the Administrative Litigation Act / [2] Articles 6(1)1(a) and 53 of the former Local Tax Act (amended by Act No. 5406 of Aug. 30, 197), Article 41(1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15489 of Oct. 1, 1997), Article 2 subparag. 1(o) of the Framework Act on National Taxes, Articles 3 subparag. 5, 5(1)6, 7(4) and (5), and 10 of the Act on Special Rural Development, Articles 6(1), 10(1), and 10(2) of the Enforcement Decree of the Special Rural Development Tax Act
[2] Supreme Court Decision 87Da3177 delivered on February 14, 1989 (Gong1989, 415) Supreme Court Decision 94Da10740 delivered on September 27, 1994 (Gong1994Ha, 2804) Supreme Court Decision 94Da31419 delivered on February 28, 1995 (Gong195Sang, 1455) (Gong195Sang, 1455) Supreme Court Decision 97Da8427 delivered on November 11, 197 (Gong197Ha, 3758)
Plaintiff (Attorney Lee Ho-ro et al., Counsel for the plaintiff-appellant)
Seodaemun-gu Seoul Metropolitan Government
Seoul High Court Decision 97Gu31023 delivered on January 21, 1999
The judgment of the court below is reversed. The litigation costs are assessed against the plaintiff.
Judgment ex officio is made.
In light of the record, the plaintiff is seeking confirmation of existence of tax liability of KRW 86,400,00 and special rural development tax of KRW 7,920,000 due to the acquisition of the real estate in this case. As such, the lawsuit for confirmation of existence of tax liability is a lawsuit claiming the legal relationship itself under the public law, and thus, the state, public organization, or other rights-holder who is a party to the legal relationship under Articles 3 subparagraph 2 and 39 of the Administrative Litigation Act shall be eligible for defendant.
Meanwhile, in full view of Article 6(1)1 Item (a) and Article 53 of the former Local Tax Act and Article 41(1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15489, Oct. 1, 1997) (amended by Presidential Decree No. 15489, Oct. 1, 1997), the former (Gu)’s payment of acquisition tax to the Special Metropolitan City upon receipt of a report is merely the performance of the affairs of the Special Metropolitan City and the Gu’s payment of acquisition tax to the Special Metropolitan City is the Special Metropolitan City (see Supreme Court Decision 97Da8427, Nov. 11, 1997); Article 2 subparag. 1 Item (c) and Article 53 of the Framework Act on National Taxes; Article 41(1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15489, Oct. 1, 199). 1, 200>
However, the Seodaemun-gu that the plaintiff is the defendant in the lawsuit of this case is a local government dealing with the collection of acquisition tax and special rural development tax, and is not a subject to the ownership of acquisition tax and special rural development tax, and therefore, the plaintiff's lawsuit of this case is unlawful. Thus, the plaintiff's lawsuit of this case is unlawful, and the judgment of the court below is erroneous, which affected the conclusion of the judgment by misunderstanding the legal principles on the qualification of
Therefore, without further proceeding to decide on the grounds of appeal, the judgment of the court below shall be reversed, and since it is deemed sufficient to judge this court, the lawsuit of this case shall be dismissed, and the total costs of the lawsuit shall be borne by the plaintiff and it is so decided as per Disposition by the assent of all participating Justices.
Justices Shin Shin-chul (Presiding Justice)