No obligation to investigate the current status at the time of imposing comprehensive real estate holding tax.

Unless there is a need to conduct a separate investigation to determine whether the comprehensive real estate holding tax is actually subject to taxation, it shall not be obliged to conduct an investigation on its current status.

Article 12 of the Gross Real Estate Tax Act / [Taxpayer]

2011Return of unjust enrichment, 99196

○ shopping Co., Ltd.

Republic of Korea and 1

December 2, 2014

on April 30, 2014

The defendant 1. △△△-gu shall pay to the plaintiff 182,592,773 won and 36,005,571 won among them from September 29, 2008, 22,145,020 won from November 12, 2008, 37,422, and 427 won from September 22, 2009, 23,623,479 won from November 2, 2009, 38,862,97 won from September 20, 2010 to April 30, 2014; and 24,53,299 won from September 20, 2010 to April 30, 2014; and 35% from the following day to April 30, 2014 to 9, respectively.

2. The Plaintiff’s remaining claims against Defendant ○○○-si and the Defendant’s claims against the Republic of Korea are all dismissed.

3. Of the litigation costs, 2/3 of the part arising between the Plaintiff and Defendant ○○ City △△△, the remainder shall be borne by the Plaintiff, and the remainder shall be borne by the Plaintiff and the Defendant Republic of Korea.

4. Paragraph 1 can be provisionally executed.

Cheong-gu Office

Defendant ○○○○-si (hereinafter referred to as “△△△-gu”) shall provide the Plaintiff with the money of KRW 525,792,437 and KRW 49,104,462 from September 26, 2006, KRW 30,196, and KRW 286 from November 8, 2006, KRW 55,631, and KRW 749 from September 28, 2007; KRW 34,211,29 from September 8, 2007; KRW 70,327,746 from September 29, 208; KRW 50 from September 29, 2008 to KRW 43,254,676 from September 12, 2008 to KRW 70; KRW 94,970 from September 29, 205; and KRW 19,794 from September 29, 2019>

Defendant Republic of Korea shall provide the Plaintiff with money for KRW 742,874,785 and KRW 76,309,231 from December 15, 2006; KRW 76,309,231 from January 29, 2007; KRW 85,975,846 from December 17, 207; KRW 85,975,845 from January 31, 2008; KRW 118,209,825 from December 15, 2008 to KRW 107,828, KRW 107,828, KRW 187 from January 29, 209 to 205; KRW 150 from May 31, 2005 to 305; and KRW 150 from 2005 to 37,50 per annum; and KRW 1501 to 375,297

1. Basic facts

A. Taxation against the plaintiff

1) From 206 to 2010, Defendant 1 imposed the property tax and the urban planning tax, which is the objective tax imposed on the premise of the tax liability (hereinafter collectively referred to as the “property tax of this case”) on the Plaintiff, who owns the land, such as 10,198.4 square meters (hereinafter referred to as “instant land”) located within his jurisdiction, including ○○○○○-dong, ○○○-dong, ○○○, △△-dong, ○, △△-dong, and △△-1, on September 200 each year (hereinafter referred to as the “instant property tax”), and the Plaintiff paid it on the relevant date indicated in attached Table 1-1.

2) From 2006 to 2010, Defendant Republic of Korea imposed a comprehensive real estate tax on the land owned by the Plaintiff, including the instant land, and a special rural development tax, which is the objective tax imposed on the premise of the duty to pay comprehensive real estate tax and its tax liability (hereinafter collectively referred to as “the instant attached tax”), as indicated in attached Table 1-2, on the Plaintiff, and the Plaintiff paid it in full on the relevant payment date indicated in attached Table 1-2.

B. Current utilization status of the instant land

1) Before 190, the Plaintiff constructed the instant building on the instant land at ○○ department store ○○○ store (hereinafter “instant building”) and used the instant land as its site.

2) However, prior to the imposition of the instant property tax and the instant attached tax (hereinafter collectively referred to as the “instant taxation disposition”), prior to the imposition of the instant property tax and the instant attached tax, the urban design was established and implemented by the ○○○○○ Center neighboring the instant land, which was located within the instant land as a special design zone under the Building Act (hereinafter referred to as “the instant special zone”). As the relevant urban design was established and implemented, the instant land was created in accordance with the land use plan of the urban design. Such utilization status had continued from 2006 to 2010.

3) The specific status of use is the same as the details of the drawings in the attached Form 3-2, and when examining from the south boundary line of the instant land abutting on ○○○, the report, paintings, and street squaress were created and locationed north of that boundary line in order.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, 3 through 7, 40 through 43, 53, 54, Eul evidence 4 (including a branch number), each statement or image of Gap evidence 4, the appraiser's appraisal result, and the result of the appraiser's appraisal and supplementation, the result of the on-site inspection by this court, the purport of the whole pleadings

2. The plaintiff's assertion

이 사건 과세처분 당시 이 사건 토지 중 별지 3-2 도면 표시 ㉡2, ㉢2, ㉥, ㉨, ㉪, ㉡2의 각 점을 순차로 연결한 선내 부분, 즉 이 사건 토지의 남쪽 경계선으로부터 10m 거리를 두고 남쪽 경계선과 평행하는 직선을 그었을 경우 형성되는 그 선내 부분 (이하 '이 사건 쟁점부지'라 한다)은 이 사건 특별구역의 도시설계에 따라 일반 공중이 통행하는 보도로 제공됨으로써 원고가 이를 독점적ㆍ배타적으로 사용ㆍ수익할 수 없었다. 그러므로 이 사건 쟁점부지는 구 지방세법(2010. 3. 31. 법률 제10221호로 전부 개정되기 전의 것, 이하 같다) 제186조 제4호 및 같은 법 시행령 제137조 제1항 제1호 본문에서 정한 '사도'에 해당하며,3) 위 시행령 제137조 제1항 제1호 단서에서 정한 '대지안의 공지'에는 해당하지 아니하므로 과세대상이 될 수 없다. 그런데도 피고들은 이 사건 과세처분 당시 이 사건 쟁점부지가 과세대상임을 전제로 하여 그 세액을 산정하였다.

As such, since the instant taxation disposition has significant and apparent defects, the part concerning the instant key site of the instant taxation disposition is null and void. Therefore, the Defendants are obliged to return to the Plaintiff the amount equivalent to the instant key site of the tax amount paid by the Plaintiff in accordance with the instant taxation disposition.

3. Determination

(a) Related Acts and subordinate statutes;

Attached Form 2 shall be as listed in attached Table 2.

B. Defect in the instant taxation disposition

1) Article 186 Subparag. 4 of the former Local Tax Act and Article 137(1)1 of the Enforcement Decree of the same Act

The term "private roads established for the purpose of contributing to the free passage of the general public" is not limited to the private roads established for the purpose of contributing to the free passage of the general public with permission under Article 4 of the Private Road Act. Even if the private roads are established for the purpose of contributing to the free passage of the general public from the beginning, the private roads do not put any restrictions on the passage of the general public in light of the overall circumstances such as the actual conditions of the use of the private roads, the connection status of the private roads to the public, and the surrounding site circumstances. In fact, if the private roads are widely used for the passage of the general public, such private roads are included in all of them. Therefore, even in the case of the "public roads within the site" under the Building Act, it is objectively and comprehensively examined whether the site owner is not able to pass around the site, or it is difficult to provide the public roads for the free passage of the general public, and thus, it does not constitute an exception to the property tax under Article 28(1)2 of the former Enforcement Decree of the Local Tax Act.

2) The evidence Nos. 40 through 43, 48, 54, 55, Eul evidence Nos. 12 (including a Serial number), and Eul evidence Nos. 12, the appraiser's appraisal results and supplementary results, the result of the on-site verification conducted by the court of this case, and the purport of the entire pleadings as to the ○○ market of this case as of October 22, 2012, comprehensively taking account of the results of the fact inquiry conducted by the court of this case as of October 22, 2012, the following circumstances are acknowledged

① Around May 1985, the △ Association, an incorporated association, established the urban design of the instant special zone (hereinafter “urban design”), and the detailed guidelines for the implementation plan set forth a street plaza linked to the sidewalk in order to expand ○○ro’s roadway abutting on the south side boundary of the instant land from the fourth lines to the five lines, and secure the sidewalk that runs away therefrom more than 7 meters wide.

② Since then, as 00 ○ road expands into 5 lanes, the outer line of the roadway became abutting on the south side boundary line of the instant land, and the sidewalk that was dismissed on the roadway was installed as the boundary line of the instant land.

③ Around July 1997, the urban design of the instant special zone was re-established by Defendant △△△△ (hereinafter referred to as “urban design”) and the existing urban design, etc. was reviewed in 1985, and the detailed guidelines for urban design in 1997, which was formulated, provided that a road plaza was created by expanding pedestrian space on the north, the upper wing side, the bridge, and the blick side of the instant special zone and the blick line was secured by linking it with the street plaza already created on the south ○○○ side.

(4) The layout plan map included in the urban design, 197 (see Evidence 41, 25, e.g., Disposition No. 41, 1997) shall be

The utilization status 4) is the same as the contents of the attached Form 3-2, which is the current use status at the time of the taxation disposition in this case, and in particular, it is true in the form and disposition of the group created on the land in this case.

⑤ The current status of the use of the instant land, which was indicated in the plan for the arrangement of urban design in 1997, was maintained in both the draft of the urban design modification prepared by Defendant △△-gu around July 199 and the relevant drawings prepared around March 200 in the draft of the urban design modification prepared around March 200.

④ Through such a series of urban design, a pedestrian space was created in the instant special zone. The specific form of a pedestrian space that was created on the instant land at the time of the instant taxation disposition was to play a role as a boundary between the news report part abutting on ○○○, as seen in the Appendix 3-2 drawings (as part of the instant site, referring to the news report part E2, E5, G1; hereinafter referred to as “the news report part of the instant site”) and the street plaza part on the north, wherein a series of chemical facilities installed inevitably so as to make it possible to walk linked to the two parts and make it possible to distinguish the two parts.

7) In order for the general public to pass ahead of the building of this case to pass through ○○○, the news report of this case is nothing more than the part of this case, and the news report of this case is provided by the Plaintiff as a pedestrian space according to the urban design of the special zone of this case. As such, the Plaintiff was unable to prevent the passage of the news of this case and use it exclusively or exclusively for profit-making. On the other hand, the street plaza on the north side was frequently used as the event space of the department store operated by himself.

3) If such various circumstances are gathered, it cannot be deemed that the Plaintiff’s exclusive, exclusive, and profit-making was impossible in the entire site at the time of the instant taxation as alleged by the Plaintiff, but at least, the instant portion of the instant report is used for the free passage of the general public without any restriction. As such, the instant portion of the instant report constitutes a private road subject to property tax exemption under Article 186 subparag. 4 of the former Local Tax Act and Article 137(1)1 of the Enforcement Decree of the same Act. Even if the instant portion of the report belongs to the vacant area within the site under the Building Act, even if the Plaintiff is not likely to exercise exclusive and exclusive control over that portion, it cannot be deemed that the instant portion of the report constitutes a private road under the proviso of Article 137(1)1 of the former Enforcement Decree of the Local Tax Act, and thus, it cannot be deemed that it constitutes “open area within the site excluded from non-taxation.”

4) Meanwhile, at the time of the instant taxation, some of the issues in the instant case (attached Form 3-2) were incorporated into the vehicular road of ○○○○, but it is apparent that the portion of the instant vehicular road (hereinafter referred to as the “instant vehicular road”) also constitutes “road under the Road Act, which is exempt from taxation” under Article 186 Subparag. 4 of the former Local Tax Act and Article 137(1)1 of the Enforcement Decree of the same Act.

5) Ultimately, there is a defect in the taxation disposition of this case, which is not subject to taxation under the relevant laws and regulations, and also imposed on the sidewalk and roadway 5).

C. Whether the instant taxation disposition is void as a matter of course

1) Relevant legal principles

In order for a taxation disposition to be null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and its defect must be objectively and objectively obvious. In determining whether it is significant and obvious, it is necessary to review the purpose function, etc. of the law that serves as the basis for the taxation in question, from a teleological perspective, and at the same time, reasonably consider the specificity of the specific case itself. In addition, a taxation disposition made to a person who does not have any legal relation or factual relations that are subject to taxation in question should be serious and obvious, but if there are objective circumstances that make it possible to believe that it is subject to taxation in relation to any legal relation or factual relations that is not subject to taxation, if it is possible to accurately investigate the factual relations, it cannot be deemed that it is apparent even if the defect is serious, and thus, it cannot be deemed that the taxation disposition that misleads the fact of taxation in question is null and void as a matter of course (see Supreme Court Decision 200Da24986, Jul. 10, 201).

2) As to the seriousness of defects

The above defect in the taxation disposition of this case was imposed even on the portion not subject to taxation in violation of the major provisions of the relevant laws and regulations which determine whether to impose taxation, and it is obvious that the defect is significant.

3) As to the apparentness of the defect

As to whether the foregoing defect of the instant taxation disposition is objectively apparent, the case of the instant disposition on imposition of property tax and the case of the instant disposition on imposition of the attached tax shall be examined separately.

A) In the case of the imposition of the instant property tax

(1) In full view of the following circumstances as seen earlier, Gap evidence 19, Eul evidence 20-1, Eul evidence 20-2, Eul evidence 45, Eul evidence 1, Eul evidence 3-4-2, and Eul evidence 1, Eul evidence 3-4-2, and the overall purport of oral argument, the following circumstances at the time of the instant taxation disposition, which were known, can be deemed as objectively apparent from the tax disposition of this case at least on June 2008, i.e., the part made after the tax year 2008, 2009, and 2010. However, it is difficult to recognize the apparentness of the defect in the case of 2006, 2007 for the year part of the tax year.

① In light of the current status, the part of the instant report was divided into two parts along the boundary of the street plaza, and it was actually performed as part of the report installed by ○○-ro, and was in the external form so that it can easily be seen that it was offered to the public for free passage through the general public, solely on the ground that the part of the instant report was performed by ○○-ro.

② The utilization status of the instant land was existed prior to the instant taxation disposition, and such use status was relatively clearly reflected in the urban design prepared by Defendant 1 △△△ in 197 and the subsequent two times in the urban design modification proposal.

③ In urban design in 1985, ○○-ro’s roadways were expanded from the fourth line to the fifth line, and the sidewalk abutting on it was sufficiently secured by a width of not less than 7m. As a result, the sidewalk outside the instant land was installed within the boundary of the instant land. Defendant Gangnam-gu prepared an urban design and a modified proposal in 197, and examined the contents of the urban design in 1985.

④ On the south side of the instant special zone, following the instant land owned by the Plaintiff, and the land owned by △△△ Development Co., Ltd. (attached Form 3-1 drawings No. 159-8) and the land owned by △△△ Association, an incorporated association (attached Form 3-1 drawings No. 159-9 land) are connected in the field of the Gu, and these adjoining land also have the part of the report connected to the instant report, and this part of the report was established according to the said urban design as in the instant report part. The Defendant △△-gu confirmed that around May 2007, the reported part of the said 159-9 land constitutes a private road exempt from property tax through an administrative appeal with the △△ Association, an incorporated association, and confirmed that around June 12, 2008, the part of the said 159-8 land constitutes property tax-free report.

⑤ Meanwhile, on April 21, 2005 and June 23, 2008, the head of ○○○ sent to Defendant △△-gu an official door stating that “Before determining whether to impose property tax on the vacant land and the part of the private road on the site, the head of △△-gu confirmed the current status, etc. of the site.”

(6) As seen earlier, the Defendant Gangnam-gu, who had been aware of the overall utilization of the land of this case and its surrounding land in the process of urban design, confirmed that, through the above administrative appeal and administrative litigation, the part of the report of this case and the report of neighboring land, which is formed and connected directly to the news report of this case, shall be exempted from property tax, was easily known only by the fact-finding that there was a news report of this case on the land of this case, which is subject to exemption from property tax, around June 2008, when 2008, ○○○ market had been urged to conduct an on-site investigation prior to the imposition of property tax on the vacant land within the site.

7) On the other hand, in the case of the instant vehicular road portion, it is apparent that the Plaintiff’s exclusive and exclusive use profit was not possible as it is incorporated into the vehicular road along with the outer side of the instant vehicular road. In addition, around June 2008, it seems that the existence of the instant vehicular road portion and its current status could have been sufficiently recognized in the instant vehicular road portion, which could have been easily known that there was a portion of the instant vehicular road subject to non-taxation on the instant land, as seen earlier.

(2) In relation to this, Defendant △△-gu asserts that the defect in the disposition of the property tax of this case, including the portion subject to non-taxation, was not clear in that the Plaintiff’s exclusive, exclusive, and profit-making activities could not be specified without accurate investigation. However, as seen earlier, Defendant △-gu could sufficiently recognize that the instant land was created in accordance with the urban design and provided for free passage of the general public through administrative appeals and administrative litigation on the part of the land adjacent to the instant land, and that the scope of such private road could not be easily confirmed. As such, it is difficult to deny the apparentness of the defect solely on the ground that the fact-finding investigation was necessary to accurately specify the scope of non-taxation at the time of the disposition of the property tax of this case. The above argument by Defendant △△-gu is rejected.

(3) If so, the part of the tax amount corresponding to the portion of the private road and the portion of the roadway in the disposition of imposition in 2008, 2009, and 2010 of the property tax of this case shall be deemed to be null and void as it is significant and apparent.

In regard to this, Defendant △△-gu alleged that there was a defect in part of the taxation, and that the invalidation of the taxation cannot be recognized only for that part, but as long as it is possible to revoke the taxation only for the unlawful part exceeding the reasonable tax amount (see Supreme Court Decision 94Nu5038, Oct. 28, 1994). As such, it is also possible to recognize the invalidation only for the portion where there exists a serious and apparent defect in the taxation, the above argument by Defendant △△-gu is without merit.

B) In the case of the instant disposition of imposition of the attached tax

If we consider the following circumstances that can be seen by gathering the aforementioned facts and the purport of the entire pleadings, it is difficult to view that the above defect in the disposition imposing the final tax in this case was objectively apparent in appearance to the Defendant Republic of Korea, and therefore, the disposition imposing the final tax in this case cannot be deemed null and void as a matter of course. Therefore, the Plaintiff’s assertion of unjust enrichment is not accepted on a different premise.

In view of the present state of use of the instant land and its surrounding land at the time of the instant taxation, it can be seen that the instant sidewalk was provided for free passage to the general public, or that the instant roadway was incorporated into ○○○.

② However, there is no evidence to deem that the Defendant Republic of Korea was aware of or was in a position to know the above utilization status of the instant land in the course of imposing the attached tax on the instant land.6) In addition, the head of the competent district tax office having the authority to impose the comprehensive real estate holding tax under the Comprehensive Real Estate Holding Tax Act shall impose the comprehensive real estate holding tax on the basis of the property tax assessment data for the pertinent year provided by the head of the competent Si/Gun, and accordingly, there is no obligation to conduct a separate investigation

③ With the amendment of the Gross Real Estate Tax Act on January 11, 2007, comprehensive real estate holding tax was converted from the previous tax payment method to the imposition method. However, there is no evidence to deem that the Plaintiff raised an objection against the Defendant Republic of Korea at the time of reporting and paying the specific tax of this case, including the existence of private roads subject to non-taxation among the land of this case.

D. Scope of return of unjust enrichment by Defendant △△ District

1) According to the appraiser’s appraisal results, the results of appraisal, the results of supplementation, and the purport of the entire pleadings, the area of the size of drawings (attached Form 3-2, E2, E5, G1) of the instant report and the roadway of this case (attached Form 3-2), which had been subject to non-taxation, among the land in this case at the time of the instant taxation, shall be recognized as the total area of 451.3 square meters (=3.9 square meters (E2) + 343.4 square meters (E5 square meters) + 14.5 square meters (F) + 89.5 square meters (G1)).

2) Therefore, if Defendant △△△ Gu calculates the amount of unjust enrichment to be returned to the Plaintiff by multiplying “the amount imposed by the Plaintiff as property tax for the taxable year 2008, 2009, 2010” by “the ratio occupied by the size of 10,198.4 square meters of the land in this case to the size of 10,198 square meters and the size of non-taxable land,” it is as indicated in the following column for the amount of unjust enrichment. Defendant △△△ Gu as a malicious beneficiary under Article 748(2) of the Civil Act, should return the amount of unjust enrichment by adding the legal interest from each corresponding day on the date specified in the following table to the legal interest.

Tax year

Date of Payment

Amount to be paid;

Amount of unjust gains;

For the first portion in 2008

2008-09-29

813,647,740

36,005,571

For the second installment of 2008

2008-11-12

500,429,370

2,145,020

For the first portion in 2009

2009-09-22

845,665,600

37,422,427

For the second installment of 2009

2009-11-02

533,839,330

23,623,479

For the first portion in 2010

2010-09-20

878,218,890

38,862,977

For the second installment of 2010

2010-11-08

54,399,300

24,533,299

Total

182,592,773

4. Conclusion

Therefore, as to the above KRW 182,592,773 among the above KRW 36,05,571 from September 29, 2008, and 22,145,020 from November 12, 2008, for KRW 37,422,427 from September 22, 2009, for KRW 23,623,479 from September 22, 2009, for KRW 38,862,977 from September 20, 209, and for KRW 36,05,571 from among them, Defendant △△△-gu shall return unjust enrichment to the Plaintiff, and as to KRW 24,53,29 from November 8, 2010 to the extent of △△△△△△△△△△△△△△△△△△△△△△’s remaining claims are all dismissed. The Plaintiff’s claims against the above KRW △△△△△△△△△△’s claims are all reasonable.