[2] In a case where Gap completed provisional registration of real estate owned by Eul, etc. in accordance with the payment in substitutes agreement that was concluded by Eul, etc. while lending money to Eul, and thereafter reported and paid acquisition tax to the competent local government by completing the registration of transfer of ownership, and where the judgment ordering Eul, etc. to cancel the registration of transfer of ownership became final and conclusive after the judgment was rendered in the lawsuit brought by Eul, the case holding that Gap's act of filing a registration of transfer

[2] The case holding that in a case where Gap filed a return of unjust enrichment of the amount equivalent to acquisition tax against a local government since the registration of transfer of ownership became final and conclusive in a lawsuit filed by Eul et al., on the ground that Eul completed provisional registration on the real estate owned by Eul, including Eul, based on a pre-sale agreement concluded by Eul et al. when lending money to Eul et al., and filed a return of unjust enrichment of the amount equivalent to acquisition tax on the ground that Eul et al. did not go through legal liquidation procedures as to provisional registration security, the case holding that even if considering the circumstances that the registration of transfer of ownership was invalid due to the lack of taxation requirements, and the disadvantage that may arise to Gap et al., if the registration of transfer of ownership is not deemed null and void, the above registration of acquisition tax cannot be deemed as null

1. In the case of taxes by the method of return and payment such as acquisition tax, in principle, the taxpayer’s tax base and tax amount are determined specifically by the act of filing a return, and the payment act is the performance of specific tax liability established by the return, and the local government retains the tax amount paid based on the tax claim established as such. Therefore, as long as the act of filing a return by the taxpayer does not automatically become null and void due to a grave and apparent defect, it cannot be deemed as unjust enrichment. Here, as to whether the act of filing a return constitutes abrupt invalidation due to a grave and apparent defect, the purpose, meaning, function, and legal remedy for the act of filing a report should be considered as a basis for the act of filing a report, and it should be reasonably determined by individually and reasonably by considering the specific circumstances arising from the act of filing a return (see Supreme Court Decisions 94Da60363, Dec. 5, 1995; 2006Da81257, Apr. 23, 2009).

2. Review of the reasoning of the lower judgment and the record, including the duly admitted evidence, reveals the following facts.

A. The Plaintiff agreed with Nonparty 1 and Nonparty 2 to lend money to Nonparty 1 and Nonparty 2, but, if Nonparty 1 and Nonparty 2 fail to repay money by the due date, they agreed to pay in kind each of the instant real estate owned by Nonparty 1 and Nonparty 2 to the Plaintiff.

B. On September 17, 2007, the Plaintiff completed each provisional registration based on the pre-sale agreement (hereinafter “the provisional registration of this case”) on each of the instant real estate on September 14, 2007, and completed each transfer registration based on the provisional registration of this case on December 18, 2007, upon completion of the provisional registration of this case on November 19, 2007, filed a acquisition tax return with the Defendant, and thereafter paid acquisition tax based on the said report.

C. However, on January 2, 2008, Nonparty 1 and Nonparty 2 filed a lawsuit against the Plaintiff to the effect that the procedure for cancellation registration of the principal registration of this case was followed by Suwon District Court 2008Kadan234, and the above court rendered a judgment ordering cancellation on May 13, 2008, on the ground that the provisional registration of this case was a provisional registration of security under the Provisional Registration Security Act, and the market price of each real estate of this case exceeds the leased principal and interest at the time of lending the above money, without going through liquidation procedures, even though the total market price of each real estate of this case exceeds the leased principal and interest, and the above judgment became final and conclusive at that time

D. Meanwhile, the Plaintiff asserted that the principal registration of this case was valid in the course of the lawsuit at issue, and on the premise of this, filed a counterclaim seeking the implementation of the procedure for changing the name of the owner of each of the instant real estate to the owner of the building which was under construction on the land.

E. In addition, even though the judgment ordering the cancellation of the principal registration of this case became final and conclusive, the principal registration of this case was not cancelled until December 7, 2009 at the time of the filing of the lawsuit of this case, and thereafter, with respect to the remaining real estate, other than the real estate listed in the [Attachment 1 and 2] sold during the voluntary auction procedure among each of the real estate of this case, the principal registration of this case was still maintained until

3. According to the above facts, ① there was no active participation by the tax authorities in the process of paying and paying acquisition tax on this case; ② the Plaintiff completed the principal registration of this case on the basis of the provisional registration of this case and voluntarily paid the acquisition tax without any circumstance, such as the Plaintiff’s inevitable report and payment in order to avoid sanctions such as additional tax, etc. ③ Furthermore, the provisional registration of this case and the registration of this case based on the provisional registration of this case are made based on the reservation to sell and purchase real estate ownership, and it appears that the provisional registration of this case is completed based on the process of acquiring ownership of real estate, and ④ unlike the above registration, the provisional registration of this case constitutes a security registration. In particular, the circumstance that the total market value of each real estate of this case exceeds the principal and interest on the loan at the time of the promise to sell and purchase this case and further the principal registration was conducted without going through liquidation procedures can be found to have been investigated in detail, and in fact, the Plaintiff, between the Plaintiff, Nonparty 1, and Nonparty 2, even after the judgment became final and conclusive.

Examining these circumstances in light of the legal principles as seen earlier, although the principal registration of each of the instant real estate was invalid due to the lack of validity as seen above, and even if considering the disadvantage that may be incurred to the Plaintiff who did not acquire the ownership of each of the instant real estate, or the legal remedy therefor, etc. in the event that such act is not deemed null and void, it cannot be deemed that the above defect in the acquisition tax reporting act is objectively apparent and objectively apparent, and even if there are no special circumstances to deem such act null and void, the above act of filing acquisition tax reporting cannot be deemed null and void as a matter of course.

4. Nevertheless, the lower court determined otherwise solely on the grounds stated in its reasoning that there were extenuating circumstances to regard the act of filing a return on acquisition tax as void as a matter of course, and accepted a claim for return of unjust enrichment equivalent to the above acquisition tax premised on its invalidation.

Therefore, the lower court erred by misapprehending the legal doctrine on the invalidation of a tax return, which is a tax by filing a tax return, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. 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. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)