2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

According to the records of this case, the court of first instance, on the date of the first pleading opened on June 28, 2007, notwithstanding the fact that the judge Lee ○, the judge Park ○, and the judge Kim Kim Kim ○, participated in the pleadings and concluded the pleadings, it is evident that the judgment of the first instance is signed and sealed by the judge Lee ○, who is not involved in the pleadings, in addition to the judge Lee ○, and the judge Park ○, and it is obvious that the decision of the first instance is in violation of Article 204 of the Civil Procedure Act that "in case where the procedure of the judgment of the first instance is in violation of the law," and thus, the judgment of the first instance is revoked pursuant to Article 417 of the Civil Procedure Act, and the new judgment is to be made.

2. Case summary and relevant facts on the premise of the case

A. Opening of the case

This case is a matter of seeking a payment of the amount of unfair profit and the amount of tax calculated according to the final return and the amount of tax calculated according to the final return, on the ground that the Plaintiff transferred the land owned by him and paid the calculated tax by voluntarily filing a final return of tax base smaller than the tax base at the time of the preliminary return exceeds the amount calculated according to the final return.

B. Presumed factual basis

The following facts may be acknowledged by adding up the whole purport of the pleadings to the items in Gap evidence 1 through 5, Gap evidence 6-1 through 4, Eul evidence 1, and Eul evidence 3:

(1) On October 7, 2005, the Plaintiff entered into a sales contract with ○○ Housing Co., Ltd. (hereinafter referred to as “○ Housing”) on the condition that the Plaintiff would remove the buildings on the instant land by October 27, 2006, and completed the registration of ownership transfer in the name of ○ Housing on October 27, 2005.

(2) On December 7, 2005, the Plaintiff: (a) calculated capital gains from the transfer of the instant land to the director of the Gangnam District Tax Office (hereinafter “the director of the Gangnam District Tax Office”) as KRW 3,240,375,580 with respect to the transfer of the instant land; (b) made a preliminary return on the tax base of transfer income calculated based thereon; and (c) paid KRW 1,096,238,440 (the sum of the tax amount paid and the tax amount

(3) On May 29, 2006, the Plaintiff filed a final return on the tax base of transfer income calculated by calculating the transfer income amount of the instant land as KRW 2,957,410,658 by adding it to the necessary expenses, such as the acquisition value of the relevant building, and deducting it from the necessary expenses, on the ground that the Plaintiff removed the instant land building after the preliminary return on the tax base of transfer income

(4) The Plaintiff demanded the head of Gangnam District Tax Office to refund the difference between the tax amount to be voluntarily paid by the Plaintiff based on the tax base of transfer income at the time of filing the final tax return and the tax amount to be paid by him/her at the time of filing the final tax return at KRW 1,096,238,440, which was paid in excess at the time of filing the final tax return. However, the head of Gangnam District Tax Office did not reflect the difference between the already paid tax amount and the final tax return tax amount on the ground that the Plaintiff’s request for correction does not constitute the necessary expenses to be deducted

3. The plaintiff's assertion and judgment

A. The plaintiff's assertion

Even if the Plaintiff had already filed a preliminary return on the tax base of transfer income, the tax base and the payable tax amount of the land of this case are finalized by the final return. As long as the amount paid by the Plaintiff’s preliminary return exceeds the amount of tax finalized as above, the Plaintiff asserts that the excess amount constitutes unjust enrichment and sought a return of unjust enrichment against the Defendant (i.e., 01,096, 238, 440-94, 371,076).

B. Determination

(1) The term “determination of tax liability” means specifically specifying the contents of an abstractly established tax claim, and the transfer income tax is determined by the taxpayer’s act of setting the tax base and tax amount on his own as a tax return method.

(2) However, Article 105 of the Income Tax Act provides that a person who transfers assets subject to capital gains tax shall file a preliminary return on the tax base of transfer income with the tax authority within the time limit set on the basis of the relevant transfer date whenever transferring the relevant assets. Meanwhile, Article 110 of the Income Tax Act provides that a person who files a preliminary return may not file a final return on the tax base of transfer income from May 1 to May 31 of the year following the year in which the transfer date belongs, except in special cases, so that a person who files a preliminary return may not file a final return.

(3) Here, a preliminary return is a system established in order to secure a tax claim early and prevent the accumulation of tax burden due to the distributed payment of the tax amount. The institutional purpose of the system is to provide the person who voluntarily pays tax along with the preliminary return with the effect of deducting the tax amount to be paid by the preliminary return (the amount equivalent to 10% of the tax amount to be paid from the calculated tax amount) to the person who makes voluntary payment with the preliminary return for the purpose of reliance, which is different from that of the final return. However, in light of the fact that Article 114(2) of the Income Tax Act provides for correction of the tax evasion or error without distinguishing the preliminary return and the final return under the premise that the taxpayer becomes final and conclusive even if the preliminary return is made, there is no reason to distinguish the effect of the preliminary return and the final return from the effect of the final return. Therefore, even in the case of the preliminary

(4) Even if the purport of the Plaintiff’s assertion is to seek the return of unjust enrichment on the ground that the Plaintiff’s preliminary return is partially null and void, the Plaintiff’s act of payment is deemed to be a performance of specific tax liability established by the preliminary return, and the Defendant holds the tax amount paid based on the final tax claim. As such, insofar as the Plaintiff’s act of filing a return does not automatically become null and void due to grave and apparent defects, it cannot be deemed as unjust enrichment. Thus, the Plaintiff’s assertion is without merit.

4. Conclusion

Therefore, the judgment of the first instance court in violation of the law shall be revoked ex officio, and the plaintiff's claim of this case shall be dismissed as it is without merit. It is so decided as per Disposition.

* The case has been rejected by the Supreme Court (2008Da38820) against the State.