[1] The criteria for determining whether a taxpayer's act of filing a tax return constitutes the invalidity of a tax due to a significant and apparent defect in acquisition tax and registration tax, which is a tax in the method of tax payment, and the requirements for the tax return and payment to constitute unjust enrichment

[2] The case holding that it is reasonable to regard the act of return and payment as null and void because it is significant and obvious in light of the fact that there is no remedy for objection, request for examination or administrative litigation, etc. against the tax amount paid more than 4 times or 55 times or more than the tax amount in the case where the registration tax and acquisition tax are paid properly by mistake in the course of acquisition and registration of land

[1] The acquisition tax and registration tax are taxes in the form of tax return, in principle, tax liabilities are specifically determined by the taxpayer's act of setting his tax base and amount of tax and by the taxpayer's act of filing a return, and their payment is the performance of specific tax obligations confirmed by the tax return. Since the State or a local government holds the tax amount paid based on the final tax claim as above, unless the taxpayer's act of filing a return is null and void as a result of a serious and obvious defect, it shall not be immediately deemed as unjust. Here, as to whether the act of filing a return constitutes null and void as a matter of course due to a significant and obvious defect, the purpose, meaning, function, and legal remedies for the act of filing a return shall be examined as a basis for the act of filing a return,

[2] The case holding that it is reasonable to regard the act of return and payment as invalid because it is significant and obvious in light of the fact that there is no remedy for objection, request for examination or administrative litigation, etc. against the tax amount paid more than 4 times or 55 times or more in the case where the registration tax and acquisition tax are paid properly by mistake in the course of acquisition and registration of land, and that it is reasonable to regard the act of return and payment as invalid in terms of the ideology of justice and fairness and the protection of property rights

[1] [1] Article 741 of the Civil Act, Article 19 of the Administrative Litigation Act / [2] Article 741 of the Civil Act, Article 19 of the Administrative Litigation Act

[1] Supreme Court Decision 97Da20373 delivered on December 12, 1997 (Gong1998Sang, 264) Supreme Court Decision 97Da52486 delivered on March 10, 1998 (Gong1998Sang, 98Sang, 99Da23284 delivered on July 27, 199 (Gong199Ha, 1778)

Park Sang-il (Attorney Park Byung-hee et al., Counsel for the plaintiff-appellant)

Gyeonggi-do (Attorney Kim Tae-tae, Counsel for defendant-appellant)

Seoul District Court Decision 98Da31630 delivered on June 29, 1999

1. Of the original judgment, the part against the plaintiff falling under the order to pay is revoked.

2. The defendant shall pay to the plaintiff 35,726,735 won with 5% interest per annum from July 16, 1998 to June 7, 200, and 25% interest per annum from the following day to the full payment date.

3. The plaintiff's remaining appeal and the conjunctive claim added in the trial are all dismissed.

4. The total costs of the suit shall be five minutes, one of which shall be borne by the plaintiff and the other by the defendant respectively.

The judgment of the court below is revoked in its main and ancillary cases. The defendant shall pay to the plaintiff 41,770,530 won with 25% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment (the plaintiff added the conjunctive claim at the trial).

1. Determination on this safety defense

With respect to the instant lawsuit seeking a return of the tax that the Plaintiff voluntarily returned to the Defendant on the ground that the tax was unjust, the Defendant asserts that the education tax and the special tax for rural development, out of the tax paid by the Plaintiff, are national taxes not local taxes, and thus, the instant lawsuit seeking a return of unjust enrichment against the Defendant on the premise that the Defendant, not the State, obtained a profit. However, in the lawsuit for performance, the Defendant’s assertion that the person alleged as the performance obligor by the Plaintiff has the standing to be the Defendant is an unlawful lawsuit against the Defendant. As such, the said ground for appeal by the Defendant is merely a ground to be determined as the existence of the claim within the merits

2. Judgment on the merits

A. Facts of recognition

The following facts do not conflict between the parties, and Gap evidence 1 through Eul evidence 5 (the evidence of subparagraph 1, Eul evidence of subparagraph 1, Eul evidence of subparagraph 1-1, Eul evidence of subparagraph 2 through subparagraph 3, Eul evidence of subparagraph 11-1 through 15-3, Eul evidence of subparagraph 1-2, Eul evidence of subparagraph 4, Eul evidence of subparagraph 12-1, 2, Eul evidence of subparagraph 5-1, Eul evidence of subparagraph 12-3, Eul evidence of subparagraph 6 through 12, Eul evidence of subparagraph 1-2 (the evidence of subparagraph 9-2 of subparagraph 9 is the evidence of subparagraph 16, Eul evidence of subparagraph 10-1, Eul evidence of subparagraph 1, Eul of subparagraph 1-2, Eul evidence of subparagraph 1, evidence of subparagraph 1-2, evidence of subparagraph 1-1, evidence of subparagraph 1-2 through 15-2, evidence of subparagraph 1, evidence of subparagraph 1-2 through 14-1, evidence of this case, evidence of subparagraph 15-1-2

(1) On January 12, 1982, the Plaintiff entered into a sales contract with Nonparty 1, 1982, to purchase KRW 629,514 in the aggregate of KRW 47 square meters in the land of the relevant 47 square meters, including the Gyeonggi-do Gyeonggi-do 40-2 forest and 89,409 square meters owned by the former Yan-do, the Gyeonggi-do. The Plaintiff completed the registration of ownership transfer in the name of the Plaintiff as to the aggregate of KRW 1,573,785,00 in the total amount of KRW 1,57,785,000, around May 20 of the same year, and the total amount of the land was paid around May 20 of the same year.

(2) Afterwards, the Plaintiff filed a lawsuit against Suwon District Court, Sungwon-nam Branch, 96Gahap6574, which claimed the implementation of the procedure for ownership transfer registration as to the remaining land size of 13,491 square meters (hereinafter referred to as the “Brein land”) in total of 33 parcels of land. The Plaintiff asserted that the purchase price of the remaining land was the purchase price of the remaining land by mistake, despite the fact that the total purchase price of the said 47 parcels of land was KRW 1,573,785,00,000, and that the judgment became final and conclusive around that time.

(3) On May 2, 1997, the Plaintiff completed the registration of ownership transfer in the name of the Plaintiff on the aggregate of 9,309 square meters of the size of 27 parcels of land listed in the separate sheet among the remaining parcels of land (hereinafter “instant land”). At the time, the number of non-party certified judicial scriveners delegated by the Plaintiff with the duties of transfer from the Plaintiff was 1,573,785,000 won as the acquisition price of the remaining parcels of land was determined in proportion to the size ratio of the area. Accordingly, the Plaintiff calculated the acquisition price of the instant land by 1,085,960,347 won (1,573,785,785,000 x 9,309,309/13,491) as the tax base was the sum of 11,758,030 won, education tax, 2,600 won, acquisition tax, 206,303,040 won, special rural development tax, etc.

(4) The plaintiff paid the registration tax and education tax on the date of the above report, but since the acquisition tax and special tax for rural development were not paid, the head of Gwangju Gun issued a tax notice in accordance with the decision on collection as of May 13, 1997, and on June 30, 1997, he paid the above acquisition tax of 26,063,040 won and its additional tax of 1,303,150 won and its additional tax of 2,389,110 won and its additional tax of 119,450 won.

(5) On July 1, 1997, the following day, the Plaintiff reported the amount higher than the actual acquisition value of the instant land as the acquisition value and paid it as excessive taxes. As such, the Plaintiff revoked the disposition of imposition on the difference between the tax and the tax based on the current base value paid by the Plaintiff and filed a written objection to request the return of erroneous or erroneous payments. However, according to the Plaintiff’s invitation of withdrawal of the objection, as Non-Party Seoi, who is a public official of the Gwangju Gun Office, to whom the objection was received, is the Plaintiff, and this case is not the objection, but the tax should be refunded by the claim for the refund of erroneous or erroneous payments, the Plaintiff withdrawn the above objection on July 28, 1997 and filed a claim for the refund of erroneous or erroneous payments with the Gwangju Gun Office. However, the Gwangju Gun Office asked Gyeonggi-do as to whether to refund the said tax and so long as the acquisition value reported exceeds the standard market value, the Plaintiff’s return of erroneous or erroneous payments is lawful and thus, cannot be refunded to the Plaintiff.

(6) After receiving the above notification, the plaintiff filed another objection with the Governor of the Gyeonggi-do on October 13, 1997, but the decision of dismissal was made on the ground that 60 days passed from May 28, 1997, the date of return and payment on November 28, 1997, and again filed a petition for review with the Minister of Home Affairs, but the decision of dismissal was made on February 24, 1998.

B. The plaintiff's assertion

(1) The primary claim

The actual acquisition value of the land of this case is 2,50 won per square day, total of 23,272,50 won (9,309 square meters x 2,500), and as such, the tax to be paid at the time of the above-mentioned basis is 232,720 won (10/100 of the ticket amount), acquisition tax 46,540 won (20/100 of the registered tax amount), acquisition tax 465,450 won (20/100 of the ticket amount), special rural development tax (10/100 of the acquisition tax amount) 46,450 won (10/100 of the acquisition tax amount) and 791,250 won. Nevertheless, in light of the above circumstances, the Plaintiff’s error in the acquisition value of the land of this case is 1,085,960,3475 won and the actual return price of the land of this case is more than 46 times of the actual acquisition value, and 2751,7615.7

(2) Preliminary Claim

Even if the defect in the above return and payment is serious and unclear and is not null and void as it is not reasonable, the Plaintiff’s withdrawal of the objection in accordance with the Defendant’s wrong advice as seen earlier, which is a public official in charge of the Defendant’s tax affairs, is deprived of the opportunity to receive excessive return of the tax paid through the filing of the objection and the request for review, the revocation of the disposition imposing the tax, and thus, suffered damages equivalent to KRW 41,770,530 of the above excessive payment, and thus, the Plaintiff sought compensation against the Defendant.

C. Determination on the registration tax and acquisition tax portion

The acquisition tax and registration tax are taxes in the form of tax return, in principle, the tax liability of a taxpayer is specifically determined by the act of filing a tax base and amount of tax and the act of filing a return is the performance of the specific tax obligation confirmed by the tax obligation. The State or a local government holds the tax amount paid based on the tax claim established as such. Thus, unless the act of a taxpayer's filing a return is null and void as a result of a serious and apparent defect, it cannot be deemed as unjust enrichment. Here, 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, meaning, function, and legal remedies for the defective filing of the return should be considered as a basis for the act of filing a return, and the specific circumstances

앞에서 본 같은 증거들에 변론의 전취지를 종합하면, 이 사건 토지의 실제 취득가액은 평당 2,500원씩, 총 23,272,500원(9,309평×2,500)이므로, 위 취득가액을 기준으로 하여 원고가 납부하여야 할 취득세를 계산하면, 465,450원(과표금액의 1000분의 20)이 되고, 실제로 원고가 납부한 것과 같이 취득세를 납기 후인 1997. 6. 30.자로 납부한다고 하는 경우의 가산금은 23,272원(취득세액의 100분의 5)이 되는 사실, 한편 등록세의 경우를 보면, 위와 같은 이 사건 토지의 실제 취득가액은 [별지] 기재와 같은 이 사건 토지의 등기일인 1997. 5. 당시의 시가표준액에 미달되므로 후자를 과세표준으로 하여 등륵세를 납부하여야 할 것인바, 이에 의하여 이 사건 토지의 등록세를 산출하면, [별지] 기재와 같이 합계 2,908,763원이 되어, 원고가 납부하여야 할 세액은 총 3,397,485원(취득세 465,450원＋취득세 가산금 23,272원＋등록세 2,908,763원)에 불과한 사실, 그럼에도 불구하고 원고는 이 사건 토지의 가격을 실제의 취득가액인 23,272,500원의 46배가 넘는 1,085,960,347원으로 신고함에 따라 등륵세 11,758,030원, 취득세 26,063,040원 및 취득세 가산금 1,303,150원의 합계 39,124,220원을 납부하게 되었는데, 동 금액은 정당하게 납부하였을 경우보다 등록세는 4배, 취득세의 경우에는 무려 55배에 달하는 세금을 납부한 것으로서, 그 중 취득세(26,063,040원)만 보더라도 이 사건 토지의 취득가격(23,272,500원) 자체보다도 많은 금액을 납부하게 된 사실을 각 인정할 수 있고, 달리 반증이 없다.

In light of the above facts, as to the registration tax of this case and the acquisition tax by self-return, it cannot be deemed that there was a tax assessment by a separate tax authority on this issue, and thus, it cannot be deemed that there was a tax assessment by a separate tax authority on this issue. Accordingly, even if the Plaintiff’s voluntary declaration of tax is due to any error in its own, even if it was due to the Plaintiff’s excessive return of tax, it would be more than 4 times or 55 times the tax in the case where the registration tax and the acquisition tax were paid properly, and the tax amount exceeds the acquisition value of the land itself, the above tax return and payment shall be deemed as invalid due to a significant and apparent defect in its sense of justice and fairness and in the aspect of protecting the property rights of the people.

Therefore, the tax liability does not exist within the scope of 35,726,735 won (39,124,220 won-3,397,485 won), which is the difference between the tax amount actually paid by the plaintiff and the tax amount actually paid by the plaintiff 39,124,220 won (39,124,220 won-3, 397,485 won). Since there is no legal basis for the defendant to hold it, the defendant is liable to pay damages for delay at the rate of 25% per annum under the Civil Act from July 16, 1998, the day following the delivery of a copy of complaint of this case sought by the plaintiff, which is reasonable to dispute the existence or scope of the obligation of performance of this case, from June 7, 200 to June 7, 200.

D. Determination on education tax and special rural development tax

(1) Judgment on the main claim

The education tax and special rural development tax added to registered tax and acquisition tax shall be imposed and collected as national taxes by the head of a Si/Gun or a public official delegated by the head of a Gun, but the education tax and special rural development tax collected by a local government shall be paid to the National Treasury (see Article 10 of the Enforcement Decree of the Education Tax Act and Article 10 of the Enforcement Decree of the Special Rural Development Tax Act). Therefore, a claim for unjust enrichment against the education tax and special rural development tax paid in addition to registration tax and acquisition tax voluntarily reported and paid should be made against the country where the benefit is the subject of the benefit

(2) Determination on the conjunctive claim

As seen earlier, with respect to the registration tax of this case, acquisition tax and education tax added thereto, and special tax for rural development, tax liability becomes final and conclusive by voluntary report by a taxpayer, and it cannot be deemed that there was a separate tax disposition by the tax authority, and thus, an objection, request for examination, or administrative litigation is not allowed. Thus, even if the above west did not withdraw the original objection because the Plaintiff did not make a false advice, and the Plaintiff filed an administrative lawsuit through a request for examination, the Plaintiff was dismissed all on the ground that the disposition by the administrative agency, which could be the object of the disposition, is unlawful, and thus, no damage was caused to the Plaintiff due to the advice of the Switzerland. Therefore, the Plaintiff’s above assertion premised on the Plaintiff’s damage caused to the Plaintiff

3. Conclusion

Therefore, the plaintiff's main claim of this case is justified within the scope of the above recognition and the remaining main claim is dismissed as it is without merit. Since the part of the judgment below against the plaintiff corresponding to the above cited part is unfair, it is ordered to revoke it and pay it to the defendant. The plaintiff's main claim (the part of education tax and special tax for rural development) added in the remaining appeal and trial of the plaintiff related to the main claim is dismissed as it is without merit. It is recognized that it is reasonable to execute this case after the judgment becomes final and conclusive, so it is decided as per Disposition not to attach a provisional execution.

Judges Goi-Dung (Presiding Judge)

Note 1) On November 20, 1999, the Fair Trade Commission made a decision to the effect as above in the case concerning the provision of unfair terms and conditions under the basic terms and conditions for loan transaction of a company operating installment financing business (Article 99-264 of the Decision).

Note 2) In this respect, the Plaintiff’s assertion that, only when the Defendant’s highest notice was given, the scrap metal bears the burden of delay is rejected.

3) However, Article 72(1) of the Local Tax Act amended by Act No. 5406 of Aug. 30, 1997 provides that where a return and payment or payment by revised return have been made, a disposition shall be deemed to have been taken at the time of such return and payment. However, such provision is only applicable to those for which the time limit for the application or request has not expired as of October 1, 1997, the date of enforcement of the same Act pursuant to Articles 1 and 5 of the Addenda of the same Act, and in this case, it shall not apply.