Plaintiff (Law Firm Woo, Attorneys Lee Woo-soo et al., Counsel for plaintiff-appellant)

Market for Lighting

July 8, 2015

1. All parts of the instant lawsuit’s preliminary claims are dismissed.

2. The plaintiff's primary claim is dismissed.

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

The primary claim: The defendant's rejection disposition against the plaintiff on June 16, 2014 against the reduction of KRW 104,589,920, the local education tax of KRW 8,964,850, and the special rural development tax of KRW 5,976,560 is revoked.

Preliminary Claim 1: The part exceeding 44,824,540 won of the disposition of imposition of acquisition tax of KRW 104,589,920 against the plaintiff on December 24, 2013 by the defendant shall be revoked.

Preliminary Claim 2: The Defendant’s imposition of acquisition tax of KRW 104,589,920, local education tax of KRW 8,964,850, and special rural development tax of KRW 5,976,56, and special rural development tax of KRW 62,753,952, local education tax of KRW 5,378,910, and special rural development tax of KRW 3,585,936 shall be revoked on December 24, 2013.

1. Details of the disposition;

A. The plaintiff married with the non-party 1 on September 12, 1984, but divorced after the decision of recommending reconciliation was confirmed on December 8, 2002 from the divorce lawsuit filed by the non-party 1 against the plaintiff (the Suwon District Court 2002ddan2523).

B. Although the Plaintiff and Nonparty 1 maintained a de facto marital relationship even after the divorce, the Plaintiff filed a lawsuit claiming consolation money and a division of property (No. 2011ddan17527) against Nonparty 1 on October 22, 2013 by filing a lawsuit against Nonparty 1 for resolution of de facto marriage (No. 282,00,000) with the Plaintiff on October 22, 2013 (hereinafter “the instant judgment on division of property”). The said judgment became final and conclusive on November 19, 2013.

C. On November 17, 2013, the Plaintiff and Nonparty 1 prepared the document “Agreement on Property Division” (hereinafter “instant agreement”) separate from the instant property division judgment. The instant agreement includes the content that “The Plaintiff, the title holder of the registry of land and factory buildings owned by Nonparty 1, the ownership of the instant real estate, is transferred to the Plaintiff,” which is the ownership of the instant real estate (hereinafter collectively referred to as “instant real estate”).

D. The Plaintiff completed the registration of ownership transfer with respect to the instant real estate in accordance with the instant agreement, and on December 24, 2013, on the basis of the statutory standard price of the instant real estate 2,98,283,640 won as the tax base, the Plaintiff reported and paid acquisition tax calculated by applying 104,589,920 won, local education tax 8,964,850 won, special tax for rural development, and special tax for rural development 5,976,56,560 won (hereinafter “the instant acquisition tax, etc.”) to the Defendant by applying 3.5% of the tax rate stipulated under Article 11(1)2 (2) of the former Local Tax Act (amended by Act No. 13427, Jul. 24, 2015).

E. On March 14, 2014, the Plaintiff filed an objection to the instant acquisition tax, etc. with the Governor of the Gyeonggi-do, but was dismissed on the ground that the tax return and payment cannot be deemed a “disposition” subject to the objection. On June 13, 2014, the Plaintiff: (a) on the ground that the acquisition of the instant real estate constitutes “acquisition through division of property” under Article 15(1)6 of the former Local Tax Act; (b) filed a request for correction to the effect that the instant acquisition tax, etc. would be reduced by applying 1.5% of the acquisition tax rate under the said provision; (c) on June 16, 2014, the Defendant issued a notice that the said request for correction by the Plaintiff was groundless (hereinafter “instant disposition”).

F. The Plaintiff dissatisfied with the instant disposition and filed an objection with the Governor of the Gyeonggi-do on June 27, 2014, but the Governor of the Gyeonggi-do dismissed the said objection on August 27, 2014.

[Ground of recognition] The fact that there is no dispute, Gap's 1, 2, 4, 6, 17, and 18, and the purport of the whole pleadings

2. Judgment as to the main claim

A. Judgment on the Defendant’s main defense

1) The defendant's assertion

The plaintiff submitted to the court an application for modification of the purport and cause of the claim of this case seeking the cancellation of the disposition of this case after 90 days from the date of receipt of the notice of dismissal decision on the disposition of this case. Thus, this part of the lawsuit is unlawful because it failed to comply with the period of filing the lawsuit stipulated in Article 20(1)

2) Determination

The fact that the Plaintiff received a notice of a decision to dismiss an objection to the instant disposition on September 3, 2014 is no dispute between the Plaintiff and the Defendant. The purport of the Plaintiff’s claim on November 24, 2014, which is within 90 days thereafter, is revoked mainly by the Defendant’s disposition of KRW 59,765,380 among the disposition of imposition of KRW 104,589,920, which was rendered against the Plaintiff on December 24, 2013. Preliminaryly, the portion of acquisition tax imposed on KRW 119,531,330, which was filed by the Defendant against the Plaintiff on December 24, 2013; KRW 47,812,532, which was revoked on July 3, 2015; KRW 205, KRW 57, KRW 97, KRW 485, KRW 296, KRW 97, KRW 985, KRW 209, KRW 2985,5496,565,2945.

However, as seen next, the Plaintiff asserted that the return and payment of the acquisition tax, etc. in this case on December 24, 2013 cannot be deemed a disposition by the administrative agency subject to the revocation lawsuit, and that the tax rate should be reduced since the Plaintiff erred in the application of the tax rate in calculating the acquisition tax, etc. in the Plaintiff’s claim. Thus, it is reasonable to deem that the Plaintiff, in fact, intended to seek revocation of the instant disposition, which is the rejection disposition against the claim for reduction correction, but it was erroneous that the Plaintiff, by mistake, intended to seek revocation of the return and payment of the acquisition tax, etc. in this case on December 24, 2013, which lacks the disposal nature in the claim of the instant complaint (see Supreme Court Decision 9Du646, Sept. 26, 200).

Therefore, it is reasonable to view that the amendment of the purport of the claim on July 3, 2015 is merely an amendment of the purport of the claim. In the case of an amendment of the purport of the claim, it is sufficient to determine whether the period for filing the claim expires based on the time when the first lawsuit is filed. Since the period for filing the lawsuit was not expired as of November 24, 2014, the time when the instant lawsuit was filed, the Defendant’s defense on this part of the lawsuit is without merit.

B. Whether the instant disposition is lawful

1) The plaintiff's assertion

Around December 8, 2002, the Plaintiff rendered a judicial divorce with Nonparty 1. However, at the time, there was no agreement between the Plaintiff and Nonparty 1 on divorce, so the marriage relationship between the Plaintiff and Nonparty 1, notwithstanding the above judicial divorce, was maintained without division, and as a matter of course, did not claim a division of property between the Plaintiff and Nonparty 1.

Therefore, since the division of property following the resolution of marriage between the plaintiff and the non-party 1 was made for the first time with the resolution of the division of property in this case, it is reasonable to see that the acquisition of the plaintiff's real estate in this case constitutes "acquisition through the division of property" under Article 15 (1) 6 of the former Local Tax Act, and thus the tax rate is applied accordingly. However, the disposition in this case made on a different premise is unlawful.

2) Relevant statutes

It is as shown in the attached Form.

3) Determination

Under the principle of no taxation without law, tax laws shall be interpreted in accordance with the language and text of the law, barring special circumstances, unless they are subject to taxation requirements or non-taxation requirements, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fair taxation to strictly interpret the provisions that can be clearly viewed as preferential provisions among the requirements for reduction or exemption (see Supreme Court Decision 2003Du7392, May 28, 2004, etc.).

As seen earlier, once a judicial divorce between the plaintiff and the non-party 1 on December 8, 2002 (the plaintiff asserts that the judicial divorce is null and void, or that the divorce is the most false divorce without the agreement of the intention of divorce, but it is not sufficient to recognize it by itself, and there is no other evidence to recognize it). After that, the marriage between the plaintiff and the non-party 1 should be viewed as a de facto marriage relationship. Therefore, the division of property between the plaintiff and the non-party 1, which was made pursuant to the judgment on division of property in this case and the agreement in this case, is limited to the division of property following the resolution of de facto marriage, and it is clear that it does not constitute a division of property following a legal divorce, that is, a consultation, or a division of property following a divorce or a judicial divorce.

Furthermore, in the case of property division due to the de facto marriage, it is difficult to view that there is a logical justification that the tax authority should treat the property division equally by expanding the amount of consolation money or the right to property division in tax law to guarantee the spouse who has a de facto marital relationship as the spouse’s right to claim property division in accordance with the agreement. Moreover, in cases of property division due to de facto marriage, it is difficult for the tax authority to grasp the source of taxation, etc. compared to the resolution of legal divorce, and thus, it is possible to abuse it as a means of tax evasion, etc.; ③ in order to clarify legal relations and clarify the existence of a de facto marital relationship; ④ in cases where the parties to a de facto marital relationship have not selected legal divorce pursuant to their intention, the above provision concerns legal confusion at the time of divorce, and ④ in cases where the parties to a de facto marital relationship are not clearly protected by the former Local Tax Act without any explicit provision, it is reasonable to deem that the provision of property division can not be applied by analogy to the extent that it is unreasonable to interpret the provision of property division under the former Local Tax Act.

3. Determination as to the first and second preliminary claims

A. The defendant's main defense

This part of the lawsuit is to seek revocation by deeming the Plaintiff’s act of payment of acquisition tax, etc. as the disposition thereof on December 24, 2013. However, in the case of local tax to be paid by self-return, the amount of tax is fixed when the Plaintiff files a return, and the Defendant did not impose a separate disposition on the acquisition tax, etc. of this case on the Plaintiff. Thus, this part of the lawsuit is unlawful since it is subject to the absence

B. Determination

Article 72(1) of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010) seems to have been a disposition at the time of reporting and paying local taxes. However, when a request for correction was introduced in the Framework Act on Local Taxes enacted by Act No. 10219, Mar. 31, 201; and at the same time, Article 72(1) was deleted in the Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2011) which was enforced on Jan. 1, 2011; thus, in cases of reporting and paying local taxes, if a request for correction as in the surrounding request in this case is made and a disposition of refusal is made thereafter, it cannot be asserted as a disposition at the time of reporting and paying local taxes; or in cases where a request for correction is made after such disposition, it cannot be asserted as an unlawful disposition by the tax authority.

4. Conclusion

Therefore, the part of the lawsuit of this case as to the preliminary claim Nos. 1 and 2 is illegal, and thus, the plaintiff's primary claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Cho Sung-jin (Presiding Judge)