Gwangju Northern-gu OOdong 000-3

○○○

2. Limited partnership companies;

Gwangju Northern-gu O○○ 000-3

Representative Members MazO

Kim Jong-chul, a controlling body of the plaintiffs

Representative City Administration;

Han CO, Attorney Lee In-bok

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

갑 제1 내지 3호증의 각 1, 2, 갑 제4호증의 1 내지 6, 을 제1 내지 3호증의 각 1 내지 4의 각 기재에 변론 전체의 취지를 종합하면 , 원고 OOOOOO 주식회사( 이하 , 'OOOOOO'이라 한다)가 광주 광산구 □□동 0000 개발지구 00-0블럭에 아파트를 신축 분양하는 사업을 시행한 사실, 원고 합자회사 ●●●●(이하, '●●●● 이라 한다)이 광주 광산구 ■■동 000 개발지구 00-2블럭, 같은 동 000 오소 ◇◇개발지구 0-2블럭에 각 아파트를 신축 분양하는 사업을 시행한 사실, 원고 ●●● ● 이 위 아파트를 완공한 후에 2008. 11. 28. 취득세를 신고하면서 주택분양보증수수료 를 건축물의 취득가격에 산입하여 취득세를 산정한 다음 이를 신고하고 2008. 12. 15. 과세관청인 피고에게 등록세(지방교육세 포함), 2008. 12. 29. 취득세 (농어촌특별세 포 함 )를 납부한 사실, 원고 ●●●●의 아파트 취득가격에 포함된 주택분양보증수수료는

The development district's 00-2 block's apartment area's 190,162,470 won, and 0-2 block's 166,436,040 won. The acquisition tax amount's 7,131,969 won totaling the acquisition tax, 6,679 won totaling the special rural and fishing villages tax, 2,852,787 won totaling the registration tax, 570,556 won totaling the local education tax, 570,56 won, and Plaintiff ○○○○○○○ filed a report on the acquisition tax on June 3, 2009 with the acquisition tax reported on June 10, 2009, including the acquisition tax to the acquisition price of a building on June 3, 2009, and reported it to the acquisition tax and paid it to the Defendant who is the tax authority on June 29, 2009, including the registration tax (including the local education tax), acquisition tax (including the special rural and fishing villages tax), 13630845 won.

2. Whether the payment of a house sales guarantee fee is unlawful;

In full view of the fact that a business entity is unable to execute a sales contract due to bankruptcy, etc., a guarantee that is liable for the performance of the sale of the relevant house or the refund of the occupancy price to the buyers is not a system to guarantee the acquisition of the new building of the business entity, but a system to guarantee the performance of the sales contract to the buyers for the project entity. Housing sale guarantee fees can be deemed as expenses for housing sale in its essence; even if a pre-payment of the sale price is made at the same time as the commencement of the construction through a house sale guarantee, the house sale guarantee fees itself cannot be deemed as interest on the amount appropriated for the construction fund; according to generally recognized corporate accounting standards, housing sale guarantee fees are not treated as the acquisition cost of the building; it can be deemed that the housing sale guarantee fees were paid at the price of the building itself; or that indirect expenses such as the acquisition procedure expenses corresponding thereto are also included in acquisition price calculation (see, e.g., Supreme Court Decision 200Du12539, Dec. 12, 2012).

According to the facts acknowledged above, the plaintiffs calculated the acquisition tax by including the housing sale guarantee fee in the acquisition price of a building, and paid the acquisition tax to the defendant.

However, in light of the legal principles as seen earlier, the plaintiffs should not include the guarantee fee for the sale of housing in the acquisition price, but include it in the acquisition price of a building, calculated acquisition tax, and reported it. Thus, the plaintiffs' act of reporting acquisition tax, etc. is unlawful.

3. Whether the plaintiffs' reporting of acquisition tax constitutes an inevitable invalidation

Furthermore, I will examine whether the plaintiffs' reporting act, such as acquisition tax, is illegal and invalid as a matter of course.

As a matter of principle, acquisition tax is a tax by means of tax return and payment, in principle, the tax liability becomes final and conclusive by the person liable for tax payment by determining the tax base and amount of tax and by the person liable for filing a return, and the payment is the performance of specific tax liability determined by the person liable for filing the return, and the local government holds the amount of tax paid based on the finalized tax claim. Therefore, in order for such person liable for tax payment to become null and void as a matter of course, the defect must be significant and apparent. In addition, as to whether the act of filing a return constitutes null and void as a matter of course due to a significant and apparent defect, the purpose of this study is to examine the title, meaning, function, and legal remedy for the act of filing the report, and then to reasonably ascertain the specific circumstances that may result in the act of filing the report (see, e.g., Supreme Court Decision 94Da31419, Feb. 28,

On the other hand, as acquisition tax returns are conducted between a taxpayer and a tax authority, and the protection of a third party trusting the existence of acquisition tax reporting is not particularly problematic, even if the reporting act is null and void as a matter of course, it does not seriously undermine legal stability. On the other hand, even though there are serious defects in taxation requirements, etc., and the legal remedies are relatively insufficient compared with the national taxes, it is reasonable to exceptionally make such defective reporting act invalid if there are special circumstances to deem that it is considerably unreasonable from the perspective of the taxpayer’s interest, such as remedy for rights and interests, even if considering the stability of tax administration and the request for its smooth operation, even if there are special circumstances to consider the request for the tax administration and its smooth operation (see Supreme Court Decision 2008Du11716, Feb. 12, 2009

(6) In light of the above legal principles, it is reasonable to view that the plaintiffs' act of including acquisition tax in the above-mentioned public health zone, Gap evidence Nos. 5-1 through 4, Eul evidence Nos. 6 through 8, and Eul evidence Nos. 4 and 5 can be recognized by comprehensively taking into account the following circumstances, namely, ① the Ministry of Public Administration and Security prepared uniform guidelines concerning the return of acquisition tax and calculation of acquisition tax in the Ministry of Public Administration and Security, ② the local governments, including the defendant, actually induced the return of acquisition tax based on such invasion, and administrative guidance related thereto was made. ② Since 2006, acquisition tax was calculated by including housing sales guarantee fees in the acquisition price of a building, and the tax administration was divided in accordance with the above established rules. ③ Even if the plaintiffs' act of including the acquisition price in the above-mentioned public housing guarantee fee is unreasonable, it is reasonable to view that the plaintiffs' act of not including the plaintiffs' acts of acquisition tax in the above-mentioned public administration and tax review, and thus, the plaintiffs' act of calculating the acquisition price as it is unlawful.

4. Return of unjust gains and the scope thereof;

Since the plaintiffs' act of filing a report on the acquisition tax, etc. by including the guarantee fee for the sale of housing in the acquisition price is null and void, the defendant is obligated to return the acquisition tax, etc. for the portion calculated by including the guarantee fee in the acquisition price.

피고가 반환할 부당이득의 액수를 보면, 앞서 인정한 바와 같이 원고 OOOOOO 에게 반환할 부당이득이 합계 27,776,654원(= 취득세 18,762,432원 + 농어촌특별세 8,255원 + 등록세 7,504,973원 + 지방교육세 1,500,994원), 원고 ●●●●에게 반환할 부당이득이 합계 10,561,991원(=취득세 7,131,969원 + 농어촌특별세 6,679원 + 등록세 2,852,787 원 + 지방교육세 합계 570,556원)이다.

따라서 피고는 부당이득으로 원고 ○○○○○○에게 27,776,654원, 원고 ●●●●에 게 10,561,991원 및 각 납세일 이후로서 원고들이 구하는 바에 따라 위 27,776,654원 에 대해서는 2009. 6. 29.부터, 10,561,991원에 대해서는 2008. 12. 29.부터 이 사건 소 장부본이 피고에게 송달된 각 2011. 4. 18.까지 민법이 정한 연 5% , 각 그 다음날부터 갚는 날까지는 소송촉진 등에 관한 특례법이 정한 연 20 % 의 각 비율로 계산한 지연손 해금을 지급할 의무가 있다.

5. Conclusion

Therefore, each of the claims of the plaintiffs in this case is justified and it is so decided as per Disposition by the assent of all.