2. The costs of appeal shall be borne by the Defendant.

As for KRW 41,942,540 and KRW 9,621,180 among the Plaintiff, the Defendant shall pay to the Plaintiff 41,942,540 as well as KRW 9,621,180 as to KRW 22,628,470 from February 27, 2015; KRW 1,693,80 from October 30, 2015; KRW 7,99,010 from June 10, 2016 to the delivery date of a duplicate of the complaint of this case; KRW 5% per annum from the following day to the day of full payment; and KRW 15% per annum from the following day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

A. Purchasing each of the plaintiff's apartment ○○○ and △△△△ units

1) On November 30, 201, the Plaintiff entered into a real estate sales contract with the Earsen industry (hereinafter “ Ear industry”) that was represented by Nonparty 1, the title holder of the ownership transfer registration of ○○○○○, △△dong, ○○○○○, the instant apartment complex (hereinafter “instant apartment complex ○○○○”) (see subparagraph 1, 8, 201; hereinafter “the instant real estate sales contract”) (see, e.g., subparagraph 1, 8, and hereinafter “the instant apartment ○○”).

The ○○○○○○ in the main text of the apartment of this case purchased KRW 850,170,000 from Nonparty 1 for the purchase price of KRW 10,00,00 from the apartment of this case, and the intermediate payment of KRW 259,30,000 from the said purchase price at the time of entering into a contract, and the intermediate payment of KRW 580,870,000 on December 9, 201 shall be paid the remainder of KRW 580,870,00 on December 28, 2011. The delivery date of the instant apartment of this case shall be the date of receipt of the balance of the purchase price and cooperation with the Plaintiff in the registration procedure, and the delivery date of the instant apartment of this case shall be December 28, 2011. In case where ○○○○ or purchaser has failed to perform the terms of this contract, the other party may give written notice to the person who failed to perform it, and the other party may claim damages based on the contract termination agreement.

Note 2) December 28, 201

2) On November 30, 201, 201, the Plaintiff concluded a real estate sales contract with the title holder of the ownership transfer registration under the conditions that the Plaintiff purchases the instant apartment △△△△△△△△△△△△△△△△△ from Nonparty 2, the title holder of the ownership transfer registration at the time of the △△△△△△ Dong, △△△△△△△ (hereinafter “instant apartment △△△△△△△△△”) (see, e.g., evidence 14; hereinafter referred to as the “instant apartment △△△△△△△△△△△△△△△△△△△△”) (see, e.g., evidence 1,

B. Amendment to the contents of each of the instant apartment ○○○○ and △△△△ Real Estate Sales Contracts

1) On January 5, 2012, the Plaintiff: (a) entered into a real estate sales contract again on the following grounds: (b) the Plaintiff paid the intermediate payment of KRW 259,300,000 among the purchase price set forth in the instant apartment ○○○○ and △△△; (c) paid the remainder of KRW 580,870,00 on January 20, 2012; and (d) the remainder of KRW 580,870,00 on January 20, 2012; and (c) entered into a new real estate sales contract with each of the above intermediate payments of KRW 259,30,000 on behalf of Nonparty 1 and Nonparty 2 (see respectively, e.g., evidence 1 and 2 of the instant apartment ○○ and Nonparty 2); and (d) concluded that each of the above intermediate payments of KRW 259,30,000 should not be received from the seller (Nonindicted 1 and Nonparty 2).

2) 한편 에제르산업은 같은 날인 2012. 1. 5. 원고에게, 위 □□□□□□□□□ ▽~▽▽▽ 아파트는 우정엘디 주식회사가 시행사이고 대림그룹 계열의 주식회사 삼호(이하 ‘삼호’라고 한다)가 ‘◎◎◎◎◎’이라는 브랜드(brand)로 시공하는 아파트인데, 에제르산업이 분양대행을 위임받았고, 원고가 금일 매수한 이 사건 아파트 ○○○호, △△△호를 포함한 7세대는 에제르산업이 삼호와 주 채권단인 우리은행에 분양대금을 전액 납부한 세대이니, 원고가 분양대금을 전액 납부함과 동시에 에제르산업이 위 7세대에 관하여 조치하고 있는 모든 법률적 조치를 즉시 해제할 예정이라는 내용의 공문을 보냈다(갑 제3호증의 1 참조).

C. Report on acquisition tax and local education tax on the instant apartment ○○○○○, and △△△, on the Plaintiff’s side

1) On January 31, 2012, Nonparty 3, who represented by the Plaintiff, prepared and submitted to the head of Suwon-si Branch Office, which belongs to the Defendant, a “report within the acquisition tax deadline” with the purport that the Plaintiff would pay an amount equivalent to KRW 8,501,70, equivalent to the acquisition tax corresponding to the Do tax under Article 8(2) of the Framework Act on Local Taxes, and the local education tax corresponding to the said Do tax, as well as KRW 850,170, which constitutes the said Do tax (see subparagraph 1 of this paragraph).

2) On February 1, 2012, Nonparty 3, who represented the Plaintiff, also prepared and submitted a “in-house report on acquisition tax within the acquisition tax deadline” with the purport that the Plaintiff would pay the Plaintiff’s acquisition tax equivalent to KRW 17,003,40 on the instant apartment building ○○○○○, and the local education tax amounting to KRW 1,70,340 (see, e.g., evidence 1 No. 6 pages, see, e., the Plaintiff’s each report on acquisition tax and local education tax on January 31, 2012, and February 1, 2012 (hereinafter “each of the instant reports”).

D. After each of the instant reports was filed, the cancellation of each of the instant apartment ○○○○ and △△△△△△△, respectively.

1) On April 1, 2012, the Rotterdam industry notified the Plaintiff of the termination of a real estate sales contract that it was impossible for the Plaintiff to maintain the contract any longer due to the Plaintiff’s default on the remainder of seven households, including the instant apartment apartment ○○○ and △△△△△, which the Plaintiff concluded a purchase contract on January 5, 2012. Although the Plaintiff’s payment date was January 20, 2012 but the Plaintiff did not pay the remainder, it was the opportunity for the Plaintiff to pay the remainder for more than two months than the scheduled payment date through the content certification, etc. of the Plaintiff’s payment on March 7, 2012, while making efforts to identify the employees of our financial institutions, the Plaintiff did not pay the remainder. The Plaintiff’s sales contract finally notified the Plaintiff of the cancellation of the real estate sales contract as of April 3, 2012 (hereinafter “instant cancellation notice”).

2) On August 21, 2012, the Plaintiff received a written confirmation from the Suwon-si Office after receiving a report, such as cancellation of the contract for real estate transaction as stated in the date of cancellation of each of the real estate sales contract for the instant apartment ○○○○ and △△△△△△ on February 23, 2012 (see the evidence 4 of this case).

E. The Defendant’s collection of acquisition tax, etc. from the apartment ○○○○○ and △△△△, based on the disposition on default against the Plaintiff

The Defendant, on August 22, 2014, notified on August 22, 2014, that the traffic for the Plaintiff’s work (hereinafter “the traffic”), and seized the Plaintiff’s claim for reimbursement for the payment of the above payment claim, based on the collection request, collected the Plaintiff’s acquisition tax and local education tax on the instant apartment ○○○ and △△△△△ (including the serial number) (see, e.g., Party A6 and 7).

The total amount of local education tax additional charges for the principal and additional charges for the principal and additional charges for the principal and additional charges for acquisition tax on February 26, 2015, which are included in the table contained in the main sentence of this case, is 2,502,980,70,340, 4567,690, 850, 690, 850, 690, 621, 340 on October 14, 2015; 281,070 4,033, 470, 4703, 947, 950 356,040 356,0402,628,470, 470, 4708, 80430, 19630, 198, 1968;

[Reasons for Recognition] Each entry of Gap evidence Nos. 1, 2, 3, 6, 7, Eul evidence Nos. 1 and 4 (including branch numbers, if any) and the purport of the whole pleadings

2. Judgment on the plaintiff's claim

A. Whether the Plaintiff satisfies the taxation requirements for acquisition tax and local education tax by acquiring the instant apartment ○○○○○ and △△△△△, etc.

1) Article 7(1) and (2) of the Local Tax Act provides that acquisition tax shall be imposed on a person who has acquired real estate, and that acquisition of real estate shall be deemed acquisition by “ de facto acquisition” even without registration under the relevant Acts and subordinate statutes, such as the Civil Act. Meanwhile, Article 150 Subparag. 1 of the Local Tax Act provides that a person liable to pay local education tax shall be a person liable to pay acquisition tax on real estate acquisition.

Here, “de facto acquisition” generally refers to a case where a person fails to meet the formal requirements for acquisition of ownership such as registration but satisfies the substantive requirements for acquisition of ownership such as “payment of price.” In the case of sale, it shall be deemed that payment has been made to the extent that the payment was actually made to the extent that the payment was almost all of the price. In such a case, whether it can be deemed that almost all of the price was made shall be determined by comprehensively taking into account all the circumstances, such as the amount of the unpaid balance, the ratio of the unpaid balance to the total price, and the developments leading up to the remainder of the unpaid balance (see Supreme Court Decision 2008Du8147, Oct. 14, 2010).

2) We examine the instant case. Comprehensively taking account of the aforementioned facts and the evidence as well as the overall purport of oral argument, the Plaintiff is deemed to have paid only KRW 20,00,00 in total amount equivalent to the down payment amount of KRW 1,700,340,000 among the purchase price of the instant apartment 00 and KRW 1,700,000. Therefore, it is difficult to view that the Plaintiff had paid almost all the purchase price to the seller. As such, it is difficult to deem that the Plaintiff “actually acquired the instant apartment 0,000 and KRW 4,00,” thereby satisfying the taxation requirements of local education tax, it is reasonable to deem that the Plaintiff did not have any obligation to pay acquisition tax and local education tax. In other words, the Plaintiff appears to have purchased the instant apartment 00,000,000 at a discount of the purchase price other than part of the intermediate payment, and each of the instant real estate sales contract was concluded with each of the instant △△△△△△△△△, which was dischargedd by offering the remainder.

B. Whether each of the instant reports by the Plaintiff on the part of the Plaintiff is void as a matter of course

1) Relevant legal principles

Article 18 of the Local Tax Act provides that the collection of acquisition tax shall be made by tax return, and Article 152(1) of the same Act provides that local education tax shall be also reported and paid when a person liable to pay local education tax files a return on and pays acquisition tax pursuant to this Act. Article 35(1)1 of the Framework Act on Local Taxes provides that local education tax shall be reported and paid at the same time. Article 35(1)1 of the Framework Act on Local Taxes provides that

As for taxes in the method of tax return such as acquisition tax, in principle, a taxpayer's duty to pay taxes is determined specifically by his/her own determination of tax base and amount by filing a return, and the payment is the performance of specific duty to pay taxes confirmed by the return. Since the State or a local government retains the tax amount paid based on the tax claim established as such, unless the act of a taxpayer's return is void automatically due to a serious and obvious defect, it cannot be deemed as unjust enrichment. Here, as to whether the act of a taxpayer's return falls under the invalidity automatically due to a significant and apparent defect, the purpose, meaning, function, and legal remedy for the act of a return should be determined reasonably by considering the specific circumstances that may arise from the act of a report individually (see Supreme Court Decision 2009Da5001, Apr. 23, 2009).

If a defect in filing a return by a person liable to pay acquisition tax, which is a tax on the method of tax payment, is serious, but it is not clear, it is done between a person liable to pay acquisition tax and a tax authority, and thus, it does not seriously undermine legal stability even if the act of filing a return is not particularly an issue because the protection of a third party trusted the existence of an act of filing a return on acquisition tax is not an issue. However, even if there is a serious defect in the tax requirements, etc. and the legal remedy is relatively insufficient compared to the national tax, and it is reasonable to exceptionally consider the stability of the tax administration and the request for the smooth operation thereof, if there are special circumstances to deem that the act of filing a return is remarkably unfair in terms of protecting the rights and interests of the person liable to pay taxes, such defect should be deemed to be null and void as an exception (see Supreme Court Decision 2008Du11716, Feb. 12, 200).

In this case, as seen earlier, the Plaintiff did not have an abstract tax liability for acquisition tax and local education tax. However, even in such a situation, it can be deemed that the Plaintiff committed an act of establishing tax liability once by filing each of the instant declarations to the Defendant, who is the subject of taxation, on January 31, 2012 and February 1, 2012, which is the Defendant, who is the subject of taxation. Thus, the Defendant’s aforementioned 41,942,540 won, which was collected through the seizure and collection of the Plaintiff’s wage claim, should be recognized to constitute unjust enrichment.

2) Whether there is a serious defect in each of the instant reports

As seen earlier, since the Plaintiff cannot be deemed to have actually acquired the instant apartment ○○○○ and △△△△, there is no abstract tax liability for acquisition tax and local education tax, it is reasonable to deem that each of the instant declarations was a serious defect in knowing that there is no taxation requirement.

3) Whether there is any apparent defect in each of the instant declarations, and whether there are special circumstances to deem it as an exceptional invalidation, even if the defect is not clear.

A) In light of the following circumstances, comprehensively taking account of the above basic facts and evidence Nos. 3 and 4 as well as the overall purport of oral arguments, it can be said that the Defendant’s act of filing each of the instant declarations can only be found to be subject to the accurate investigation of facts, and it is difficult to deem that the defect of each of the instant declarations in appearance is apparent (see Supreme Court Decision 97Nu5893, Jun. 9, 200). In other words, it was before the cancellation of a contract for the sale of the instant apartment ○○○ and △△△△△, respectively, at the time of filing each of the instant declarations, before the Plaintiff’s act of filing a request for adjudication on the remainder of the payment period, including the time of filing each of the instant declarations, and the Plaintiff’s act of filing a request for adjudication with the Director of the Tax Tribunal for adjudication on the remainder of the payment period for the instant apartment ○○ and △△△△△△, which had been notified by the head of the tax office within 10th of March 7, 201201.

B) Meanwhile, Articles 20(1) and 21(1) of the Local Tax Act provides that a person who acquires an object of taxation of acquisition tax shall return and pay an amount of tax calculated by applying the tax rate to the relevant tax base within 60 days from the date of acquisition. If a person liable to pay acquisition tax fails to fulfill the above return or liability, an amount of tax calculated by adding additional tax calculated pursuant to Articles 53 through 55 of the Framework Act on Local Taxes to the amount of tax calculated or underpaid tax shall be collected by ordinary collection. Article 53(1) of the Framework Act on Local Taxes provides that an amount equivalent to 20/100 of the amount of tax to be paid by the return shall be imposed as an additional tax if the person liable to pay tax fails to file the tax base by the statutory due date of return. Article 20(2)2 of the Enforcement Decree of the Local Tax Act provides that the acquisition by succession for value, such as the instant case, shall be deemed to have been acquired on the date of payment of the balance under contract (referring to the date 60 days after the contract date of payment

As to the instant case, comprehensively taking account of the following circumstances revealed in accordance with the above basic facts and evidence Nos. 4 and the purport of the entire pleading, it is reasonable to deem that the Plaintiff was at a disadvantage that “tax due to the act of each of the reports in this case with heavy defects” is considerably unfair from the same aspect as the Plaintiff’s remedy for rights and interests. Accordingly, each of the reports in this case should be deemed null and void as a matter of course.

In other words, the Plaintiff or Nonparty 3 agreed that the remainder date of the real estate sales contract for ○○○○○○○○○○○○ and △△△△△△△△△△○○○ on December 28, 201, and that the content of each of the above real estate sales contract for ○○○○○○○ and △△△△△△△△△△ may be partially modified, and thus, may constitute “where the remainder payment date is not indicated in the contract,” it can be deemed that the Plaintiff’s act of acquiring the ownership based on each of the above facts, including the instant apartment ○○○○ and △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△○’s cancellation of the contract, and that the Plaintiff could not be deemed to have been aware of the fact that each of the instant apartment △△△△△△△△△△△△△△’s cancellation of ownership.

3. Judgment on the defendant's assertion in this court

A. Determination as to the assertion that the acquisition tax liability of this case lawfully occurred

As seen earlier, the Defendant asserts that Article 20(2)2 of the Enforcement Decree of the Local Tax Act provides that “In the case of acquisition by succession for value, such as this case, it shall be deemed to have been acquired on the outstanding payment date under the contract, such as a real estate sales contract,” and that the Plaintiff should be deemed to have acquired each of the above apartment units on the outstanding payment date under the contract for the sales of real estate ○○○

As seen earlier, the Plaintiff cannot be deemed to have paid the purchase price under the above apartment ○○○○ and △△△△△, and in the case of onerous succession acquisition, unless the actual requirements for the acquisition of ownership, such as the payment of the purchase price, or the form of transfer of ownership, are met, even if the remainder payment date under the Enforcement Decree of the Local Tax Act arrives, it cannot be deemed that the acquisition tax liability has been established (see Supreme Court Decision 2009Da5001, Apr. 23, 2009), and this part of the Defendant’s assertion is rejected.

B. Determination as to the assertion that each of the instant reports was lawful and defective

The defendant asserts that each of the reports of this case in this case is valid since the plaintiff voluntarily denies the validity of each of the reports of this case and it is bona fide that the plaintiff could not at all expect or know the defects of the above reports.

As seen earlier, the Plaintiff’s act of filing each of the instant reports in order to avoid the burden of additional tax. According to the Plaintiff’s statement No. 1, the real estate sales contract for the instant △△△ Group, attached to the Plaintiff’s report on January 31, 2012, which was attached to the acquisition tax base date, is recorded on December 28, 201, before the remainder date is reported, and the seller delivers documents necessary for the registration of transfer of ownership to the Plaintiff at the time of receipt of the balance of the purchase price and cooperate with the registration procedure, and the delivery date of the foregoing △△△△△△ was also indicated on December 28, 201, without accompanying evidentiary documents such as the receipt of the balance payment, and the certificate of completion of the real estate transaction contract for the said ○○○○○○○○○○, which was also indicated on the remainder date of the payment date, and the receipt of the remainder of the registration date of the said ○○○○○○○, which was also indicated on the remainder date of the registration date.

In light of the above circumstances, the defendant can be recognized that the plaintiff could not pay the balance of the apartment ○○○ and △△△△△ in the event of each of the reports in this case, and it can be seen that the plaintiff could have known that there was a possibility that the plaintiff would have asserted that the above reporting act was invalid since the plaintiff did not acquire the above ○○○ and △△△△△△. Therefore, the defendant's assertion

C. Determination as to the assertion that each of the instant reports is valid even when referring to the precedent of the similar case

In the similar case of this case, the Defendant asserts that each of the instant reports is valid even if according to the court precedents, but according to the written evidence Nos. 2 and 5 (including the provisional number), the Defendant’s final and conclusive judgment ( Incheon District Court Decision 2016Da239283, Apr. 19, 2017; Supreme Court Decision 2017Na56486, Nov. 30, 2017; Supreme Court Decision 2017Na56486, Nov. 30, 2017) is the final and conclusive judgment (Seoul District Court Decision 2016Da239283, Apr. 19, 2017) cited by the Defendant. The purchase price at the time of the real estate sales contract is paid to the purchaser at the same time as the contract, but the contract becomes retroactively null and void if the transfer of ownership is impossible due to the following acquisition certificate, and thus, the seller shall return the purchase price and all of all expenses to the purchaser.

4. Conclusion

Therefore, each of the instant reports is null and void as a matter of course, and the Defendant has an obligation to pay to the Plaintiff acquisition tax amounting to KRW 41,942,540 as a result of return of unjust enrichment, and KRW 9,621,180 as from February 27, 2015, KRW 22,628,470 as from February 30, 2015, KRW 1,693,80 as from October 30, 2015, and KRW 1,693,80 as from December 29, 2015, KRW 7,99,010 as from June 10, 2016, stating that the delivery date of each complaint of this case from June 10, 2016 to July 24, 2017, and KRW 5% as from the next day to the date of payment, and thus, the Plaintiff’s claim for delay damages is dismissed as the Plaintiff’s ground for appeal.

Judges Kim Yong-deok (Presiding Judge)

Note 1) Following the change of the lot number to “Yinman City ( Address 2 omitted)”.

2) Although the contract of the instant apartment building ○○○○ stated that the remainder payment date is “ December 29, 201,” the remainder payment date is indicated as “the real estate sales contract for the instant apartment building ○○○○○” and the delivery date under the said contract of the real estate sales for the instant apartment △△△○○○○ is December 28, 201, and the remainder payment date is indicated as December 28, 201 in the said contract of the real estate transaction ○○○○○○○ (Evidence A No. 4-1). In light of the fact that the remainder payment date is indicated as December 28, 2011, it appears to be deemed to be a clerical error of “ December 28,

3) The instant apartment sales contract for the instant apartment △△△△△ (see the evidence No. 1 No. 4) states that the remainder amount is “the price of KRW 580,800,000” (see the evidence No. 580,800,000). However, in light of each amount of the sales price, the down payment, and intermediate payment as prescribed in the above △△△△△△△, it appears that the remainder amount is a clerical error of KRW

Note 4) The notice of the Rotterdam industry was written as “cancellation” but its meaning should be deemed as “cancellation.”

5) Article 21(1)1 of the former Local Tax Act (amended by Act No. 11617, Jan. 1, 2013) that was enforced at the time of each of the instant reports was also stipulated to the same effect.