2010Guhap621 Nullification of imposition disposition of acquisition tax, etc.

Kim 00 (56**********)*

Jeju-si, Northernbuk 2 Dong*******

Attorney O Sung-jin et al., Counsel for the defendant

Jeju Market

Litigation performers 00

November 17, 2010

December 15, 2010

1. The defendant's imposition of acquisition tax of 12,746,520 won against the plaintiff on September 10, 2008 and special rural development tax of 1,450,070 won is confirmed to be null and void.

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

This is the same as the order of the claim.

1. Basic facts

A. On June 3, 2008, the Plaintiff purchased each real estate listed in the separate sheet No. 1 (hereinafter referred to as the “instant real estate”) from 01, 02 to 630,000,000 won, and concluded a sales contract with the purport that the down payment of KRW 45,00,000 shall be paid on the contract date, and the balance of KRW 5,000,000 shall be paid by July 23, 2008, and delegated affairs concerning the application for ownership transfer and the report of acquisition tax to the current certified judicial scrivener office.

B. On July 8, 2008, the Plaintiff filed a voluntary report on the tax base of KRW 12,617,820, and KRW 1,261,780 for acquisition tax (hereinafter “instant report”) with the Defendant’s tax base of KRW 675,541,181, and KRW 12,61,780 for special agricultural and fishing villages tax. On September 10, 2008, the Defendant issued a disposition imposing acquisition tax of KRW 12,746,520 for the Plaintiff and KRW 1,450,070 for special rural development tax (including additional tax; hereinafter “instant disposition”).

C. Meanwhile, the Plaintiff failed to pay the remainder by the date of the payment of the remainder of the above sales contract, and both01 and 02 notified the Plaintiff to cancel the contract, and the above sales contract was cancelled on August 10, 2008.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Gap evidence 2-1, Gap evidence 4-2, the purport of the whole pleadings

2. Determination on the lawfulness of the instant disposition

A. The plaintiff's assertion

The plaintiff asserts that the sales contract between both 01 and 02 is null and void even if the contract was terminated due to the plaintiff's failure to pay the purchase price, and that the disposition of this case made by the defendant is so serious and clear that the defect is null and void.

(b) Related statutes;

Attached Form 2 shall be as specified in the relevant statutes.

C. Determination and acquisition tax are taxes by payment method, which are determined by the Plaintiff’s tax liability by the Plaintiff’s return act. First, as alleged by the Plaintiff, we examine whether the act of this case, which is the premise of invalidity of the disposition of this case, is invalid or not.

(1) Determination as to whether the instant reporting act was unlawful

Article 105(2) of the Local Tax Act (wholly amended by Act No. 9302, Dec. 31, 2008) provides that acquisition of real estate shall be deemed to have been acquired when it is actually acquired even if it fails to comply with registration, etc. under the provisions of relevant Acts and subordinate statutes, such as the Civil Act, with respect to the acquisition of real estate. Here, “actual acquisition” refers to a case which generally fails to meet the formal requirements for the acquisition of ownership such as registration, but meets the substantive requirements for the acquisition of ownership such as the payment of price (see, e.g., Supreme Court Decision 2005Du1360, May 11, 2007). Article 73(1)2 of the Local Tax Act provides that acquisition of real property shall not be deemed to have been acquired on the outstanding payment date in the contract, but shall not be deemed to have been established in the case of acquisition of notarial deeds prior to the expiration of 30 days prior to the date of acquisition under Article 543 through 546 of the Civil Act.

As seen earlier, the Plaintiff’s cancellation of the sales contract on August 10, 2008 under the status that the Plaintiff was unable to pay the balance of the purchase price to both 01 and 02, as seen earlier, and thus, the Plaintiff did not acquire the instant real estate. Therefore, the Plaintiff’s tax liability for the acquisition of the instant real estate is not established. Accordingly, the Plaintiff’s report of this case premised on the actual acquisition of the instant real estate is significant.

(2) Determination as to the invalidity of the instant reporting act as a matter of course

Furthermore, the following is examined: (a) whether the defect in filing a return in the instant case constitutes grounds for invalidation; (b) acquisition tax is a tax by means of filing a return; (c) as a matter of principle, the taxpayer’s tax liability is specifically determined by setting the tax base and amount of tax and by filing a return; and (d) the local government is obliged to perform specific tax liability determined by filing a return; and (c) as such, the local government holds the tax amount paid based on the final tax claim. Therefore, in order for such a taxpayer to be held invalid as a matter of principle, the defect must be significant and apparent. However, as acquisition tax is performed between the taxpayer and the tax authority, the act of filing a return is not particularly at issue, and the protection of a third party trusting the existence of acquisition tax is not particularly problematic; (d) while the act of filing a return does not seriously undermine legal stability even if there is a serious defect in the tax requirements and the legal remedy is relatively insufficient; (e) taking the taxpayer at a disadvantage caused by filing a return without correcting the illegal result in terms of stability of tax administration and remedy of rights and interests of the obligor (see, 201.

With respect to the instant report, since the protection of a third party trusting its existence is not particularly an issue, it does not seriously undermine legal stability even if the instant report act is deemed null and void. On the other hand, it seems significantly unfair in terms of the Plaintiff’s remedy for rights and interests, etc., and it is difficult to conclude that the instant report act impedes the smooth operation of tax administration even if it is null and void, in light of the circumstances where it is difficult to conclude that the instant report act impedes the smooth operation of tax administration.

3. Conclusion

Therefore, the disposition of this case based on the premise of the invalid report of this case is null and void, and the plaintiff's claim seeking nullification of this case is justified and it is so decided as per Disposition.

The presiding judge, Judge Park Jae-in

Judges Kim Gin-tae

Judges Park So-young