2. Costs of appeal shall be borne by each person.

The defendant shall pay to the plaintiff the amount of KRW 78,564,00 and KRW 64,240,000, whichever is applicable to the plaintiff, the amount of KRW 3,884,00 from March 21, 2003; KRW 10,440,00 from May 1, 2003; and KRW 5% per annum from May 17, 2003 to the delivery date of the copy of each complaint of this case; and KRW 20% per annum from the next day to the payment date.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 68,124,000 won and 64,240,000 won with 5% per annum from March 21, 2003 to the service date of a copy of each complaint of this case, and 20% per annum from the next day to the day of complete payment.

Defendant: The part against the Defendant in the judgment of the first instance is revoked. The Plaintiff’s claim is dismissed in entirety.

The following facts do not conflict between the parties, or can be acknowledged by taking into account the following facts: Gap evidence 1, Gap evidence 2-1 through 6, Gap evidence 3-1 through 7, Gap evidence 4-1 through 3, Gap evidence 5, Gap evidence 6-1, 2, Gap evidence 9, Gap evidence 10, Eul evidence 3-3, Eul evidence 10, Eul evidence 3-3, and the testimony of Lee I-hee's witness of the first instance trial.

A. On October 20, 197, the Plaintiff is operating the Howon University as a non-profit school foundation established for the purpose of higher education.

B. The Plaintiff acquired the ownership of the real estate listed in the Attachment No. 1 as of Mar. 20, 2003, and the ownership of the real estate No. 2 as of Apr. 30, 2003 as of Apr. 30, 2003, and acquired the ownership of the third real estate listed in the Attachment No. 1 through No. 3 as of May 16, 2003 (hereinafter “each real estate listed in the Attachment No. 1 through No. 3”) to be used as the general minister of the Howon University. The first and second real estate of this case were used as kindergarten physician from Mar. 2004, and the third real estate of this case was used as the general minister of the Howonwon University.

C. The Plaintiff acquired the ownership of each of the instant real estate and paid KRW 64,240,00 for acquisition tax and registration tax in the Gunsan-si, for which the Defendant was delegated the Defendant’s business affairs, and KRW 64,240,00 for the instant real estate No. 1 on March 20, 203, KRW 3,884,00 for the instant real estate No. 2 on April 30, 2003, and KRW 10,440,00 for the instant third real estate on May 16, 2003, respectively.

D. On April 3, 2003, the Plaintiff reported the main purpose of part of the real estate No. 1 of this case to educational research and welfare facilities ( kindergarten) and received a report completion certificate. On May 27, 2003, the Plaintiff started construction work on July 25, 2003 regarding the instant real estate No. 1 of this case’s change of purpose of use, and obtained approval for change of purpose of use on November 4, 2003, after obtaining approval for change of purpose of use on November 7, 2003.

2. The party's assertion and judgment

A. Summary of the plaintiff's assertion

The plaintiff is a non-profit entrepreneur prescribed in Articles 107 and 127 of the Local Tax Act. According to the above provisions, if a non-profit entrepreneur acquires real estate to use it for his business, acquisition tax and registration tax are exempted. The plaintiff acquired each of the real estate in this case with the intent to use it according to the plaintiff's business purpose, and paid each acquisition tax and registration tax in voluntary declaration without knowledge of such provisions. Thus, it is null and void per annum, and the defendant must return the above acquisition tax and registration tax

B. Determination

(1) As a matter of principle, acquisition tax and registration tax are taxes by the method of filing a tax return, in which case a taxpayer is specifically determined tax liability by determining the tax base and amount of tax and filing a return on it by himself, and such payment is the performance of specific tax liability determined by the return, and the local government holds the tax amount paid based on the final tax claim as above. Accordingly, in the case of taxes by the method of filing a return on tax payment, if there is a significant and apparent defect in the taxpayer’s filing of a return, it shall be null and void as a matter of course

(2) Provisions of relevant laws and regulations

Article 107 of the Local Tax Act (amended by Act No. 6956 of July 29, 2003; hereinafter referred to as the “Act”) provides that “No acquisition tax shall be imposed on any of the following items (excluding objects of taxation under Article 112(2)).” Article 1 provides that “A nonprofit business operator prescribed by the Presidential Decree for religious, religious, charity, academic, art, or public services shall acquire real estate to use for his/her business.”

Meanwhile, Article 112(2) of the Act provides that "high-class housing" is subject to heavy taxation of acquisition tax and corresponding thereto under subparagraph 3, and the proviso of subparagraph 3 provides that "However, this shall not apply where a residential building is used for any purpose other than residence or construction for change of the purpose of use commences to use it for any purpose other than high-class housing within 30 days from the date of its acquisition."

Article 127 of the Act provides for registration tax as in Article 107.

(3) First, we examine whether the Plaintiff is a non-profit entrepreneur under the law regarding the real estate of this case Nos. 1 and 2.

Article 79 of the Enforcement Decree of the Act (amended by Presidential Decree No. 18035, Jun. 30, 2003; hereinafter the same) provides that "non-profit business operators prescribed by Presidential Decree" under Article 107 subparagraph 1 of the Act, who operate a school under the Elementary, Secondary Education and Higher Education Act, and lifelong education organizations which operate educational facilities under the Lifelong Education Act, and Article 4 (2) of the Elementary and Secondary Education Act provides that persons who intend to establish a private school shall obtain authorization from the Special Metropolitan City, Metropolitan City, or Do superintendent of the Office of Education. In full view of this, in order to be exempted from acquisition and registration of real estate to use for kindergarten business, the registered titleholder shall be the person who has obtained authorization for establishment of a kindergarten under the Elementary and Secondary Education Act and the registration of real estate shall be used for kindergarten business. Whether the requirements are met shall be determined at the time of establishment of the obligation to establish the school, and therefore, it shall not be interpreted that the plaintiff is a non-profit business operator under Article 7 of the Act.

Even if the plaintiff is deemed to be a non-profit entrepreneur under the above law by expanding the scope of "person who operates a school", the plaintiff's act of acquiring each of the above real estate is not subject to non-taxation, and therefore, this part of the plaintiff's assertion is therefore without merit.

Meanwhile, the Plaintiff asserted to the effect that among the real estate No. 1 of this case, the land and building No. 29-2, on April 3, 2003, which had been 30 days prior to the date of acquisition, reported the change of use and received a report completion certificate, and on May 27, 2003, the Plaintiff obtained approval for the establishment plan of a private kindergarten, and thus, the Plaintiff’s claim is not accepted since it constitutes “the case where the use of a residential building is used for non-residential purposes or the use of a non-high-class housing starts to start for non-residential purposes within 30 days from the date of acquisition of a residential building” under the proviso of Article 112(2)3 of the Local Tax Act. However, the Plaintiff’s application for the change

Ultimately, the plaintiff's assertion that the acquisition tax and registration tax arising from the acquisition of real estate Nos. 1 and 2 of this case are not subject to non-taxation is groundless.

(4) Lastly, in relation to the acquisition of the third real estate in this case, we examine whether the Plaintiff’s reporting act of acquisition tax and registration tax has a significant and apparent defect and thus, it is reasonable to nullify it.

The above real estate is acquired for the purpose of use by the plaintiff as a general minister and used for the above real estate. The plaintiff is a non-profit entrepreneur prescribed by the law as the person operating the above real estate. The plaintiff's acquisition of the above 3 real estate for the purpose of using it as the president's official residence in the Howon University constitutes "acquisition of real estate to be used by a non-profit entrepreneur" under Article 107 subparagraph 1 (Article 127 (1) 1) of the Act. Thus, the acquisition tax and registration tax following the acquisition of the above real estate shall be non-taxation pursuant to Articles 107 and 127 of the Act. On the other hand, if the plaintiff made a voluntary declaration even though the acquisition tax and registration tax from the acquisition of the above real estate are all non-taxation, and if the plaintiff made a voluntary declaration even though he did not know that it is subject to the acquisition tax and registration tax due to the above acquisition, such defect cannot be deemed as significant and obvious, and thus, it shall be null and void as it is.

The defendant asserts that the plaintiff used the real estate No. 3 of this case as a general minister of the Howon University does not directly use the real estate for the plaintiff's business purpose. However, as seen above, the plaintiff is a "person operating a school", and the "school management" includes not only the education of non-group students, but also the matters such as the maintenance, management, operation, etc. of the school. In relation to the operation, etc. of Howon University, the plaintiff's acquisition and maintenance of the president's official intention in relation to the operation, etc. of Howon University needs to be done as one of the best to attract the president, and therefore, the plaintiff's assertion that such acquisition

Therefore, the defendant, as unjust enrichment, benefits from the acquisition tax and registration tax that the plaintiff voluntarily reported on the third real estate of this case without any legal ground, and the plaintiff suffered from losses, the defendant is obligated to return the total amount of the acquisition tax and registration tax that the plaintiff acquired and paid the above real estate to the plaintiff, as unjust enrichment, and the delay compensation therefor.

3. Conclusion

Therefore, the plaintiff's claim for restitution of unjust enrichment arising from the payment of acquisition tax and registration tax on the real estate Nos. 1 and 2 of this case is dismissed as it is without merit, and the claim for restitution of unjust enrichment arising from the payment of acquisition tax and registration tax on the third real estate of this case is justified, and the judgment of the court of first instance is justified with this conclusion, and it is so decided as per Disposition by the plaintiff and the defendant's appeal is dismissed.

Judges Ko Young-han (Presiding Justice)