[2] In acquisition tax, which is a tax return method, where the tax amount returned and paid by a taxpayer constitutes unjust enrichment, and the method of determining such amount

[3] The case holding that in case where an oligopolistic shareholder who acquired a corporation’s stocks and paid deemed acquisition tax has paid the amount equivalent to the deemed acquisition tax by filing a return on acquisition tax by acquiring the corporation’s assets in a way of acquisition of business and paying it by double payment, the amount of tax paid in double because the filing of acquisition tax

[2] Acquisition tax is a tax by tax return and payment method, in principle, the taxpayer's duty to pay taxes is determined specifically by his/her own determination of tax base and tax amount, and the payment act is the performance of specific duty to pay taxes confirmed by the return, and local governments hold the tax amount paid based on the final tax claim as above. Thus, insofar as a taxpayer's act of filing a return does not automatically become null and void due to a significant and apparent defect, it shall not be deemed as unjust enrichment. Here, as to whether the act of filing a return constitutes void as a matter of course due to a significant and apparent defect, the purpose, meaning, function, and legal remedy for the defective act of filing a return shall be considered as the basis for the act of filing a return, and it shall be determined reasonably by

[3] The case holding that in case where an oligopolistic shareholder who acquired a corporation's stocks and paid deemed acquisition tax received the entire assets of the corporation and paid the amount equivalent to deemed acquisition tax by filing a return and payment of acquisition tax, the return of acquisition tax is merely a mistake that a taxpayer is liable to pay tax for the portion controversial in the interpretation of the law, but it cannot be deemed as invalid as a matter of course because the defect is objectively apparent and obvious, and thus, the double payment amount does not constitute unjust enrichment

1. Regarding ground of appeal No. 1

Articles 105(6), 111(4), and 120(1) of the former Local Tax Act (amended by Act No. 6312, Dec. 29, 200; hereinafter “former Act”) provide that “any person who becomes an oligopolistic shareholder by acquiring stocks of a corporation shall be deemed to have acquired real estate, vehicles, etc. of the relevant corporation, and the amount calculated by multiplying the value of the real estate, vehicles, etc. divided by the total number of stocks of the relevant corporation by the number of stocks acquired by the oligopolistic shareholder shall be reported and paid as the tax base by the amount calculated by multiplying the acquisition value of the oligopolistic shareholder by the number of stocks acquired by the oligopolistic shareholder.” Articles 11(1) and 120(1) of the former Local Tax Act (amended by Act No. 7013, Dec. 30, 2003) provide that “any person who acquires the object of taxation of acquisition tax shall report and pay as the tax base at the time of acquisition.”

The court below found that the plaintiff acquired the assets of the non-party corporation on September 18, 200 by acquiring 56.79% of the total stocks issued by the non-party corporation, and imposed and collected 585,50,550 won of deemed acquisition tax (including additional tax) on July 30, 201. The plaintiff paid it on July 30, 2001. The plaintiff acquired the whole assets from the non-party corporation by the method of acquisition of the assets from the non-party corporation around September 27, 2003, and reported and paid acquisition tax of 861,119,650 won to the defendant on November 27, 2003. The court below held that the deemed acquisition tax against the plaintiff did not acquire the assets of the non-party corporation, but it did not acquire the assets of the non-party corporation by discretionary disposal or management, and thus, it did not err in the misapprehension of legal principles as to the acquisition tax as to the assets acquired by the non-party corporation and the part of the acquisition tax already paid in the same manner.

2. Regarding ground of appeal No. 2

As a matter of principle, acquisition tax is a tax by means of tax return and payment, as a matter of principle, a taxpayer’s tax liability is specifically determined by the act of filing a tax base and amount of tax, and its payment is the performance of specific tax liability determined by a return, and a local government holds the tax amount paid based on the confirmed tax claim. Thus, unless a taxpayer’s act of filing a return is void automatically due to a grave and apparent defect, it cannot be deemed as unjust enrichment. Here, as to whether the act of filing a return falls under the invalidity automatically due to a grave and apparent defect, the purpose, meaning, function, and legal remedy for the act of filing a return should be examined as a basis for the act of filing a report, and at the same time, it should be reasonably determined by individually and reasonably by taking into account the specific circumstances arising from the act of filing a return (see Supreme Court Decisions 94Da60363, Dec. 5, 1995; 203Da43466, May 12, 2005).

In light of the facts acknowledged earlier, the lower court determined that the Defendant is liable to return the double-paid tax amount as unjust enrichment, on the ground that there is a significant and apparent defect in the part corresponding to double taxation among the Plaintiff’s act of filing the acquisition tax return of this case, on the ground that it is difficult to recognize the ability to confirm the tax liability, and thus, the Defendant is obligated to return the double-paid tax amount as unjust enrichment.

However, even according to the facts determined by the court below, the plaintiff voluntarily paid the acquisition tax of this case without any circumstance such as the tax authority's participation or involvement in the process of filing a return and payment, and the return was inevitable to avoid sanctions such as additional tax. Furthermore, the issue of whether the amount equivalent to the deemed acquisition tax of this case constitutes double taxation on the acquisition of the same goods or not is room for controversy in the interpretation of the law, and it is revealed that the plaintiff has to accurately investigate the facts, as well as there is room for controversy in the interpretation of the law. Further, the plaintiff asserts that the return of this case's voluntary payment of acquisition tax of this case is void as a matter of course only after the lapse of one year or more.

Nevertheless, the court below determined that the defect in the act of filing acquisition tax in this case was null and void as it is significant and apparent. Thus, the court below erred by misapprehending the legal principles on the invalidation of the act of filing acquisition tax in local tax tax, which is a tax by the method of tax return, which affected the remaining decision. The ground of appeal pointing this out has merit.

3. Conclusion

Therefore, the judgment 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 by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)