Whether or not to return the voluntary payment tax amount of capital gains tax on the land converted to ownership due to invalidity of cause.

As long as the Plaintiff’s voluntary report and payment of capital gains tax do not have any legal basis in substance or procedural law or cannot be seen as null and void as a matter of course due to a significant and apparent defect in the taxation disposition, even if the registration of ownership transfer in the Plaintiff’s name was invalidated and cancelled, the Plaintiff’s voluntary report and payment of capital gains tax cannot be deemed null and void, since there is a significant and apparent defect in the Plaintiff’

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 92,182,030 won with 5% per annum from the delivery date of the copy of the complaint of this case until the delivery date of the judgment of the first instance, and 20% per annum from the next day to the day of full payment.

1. Basic facts

The court's explanation on this part is the same as the "1. Basic Facts" part of the reasoning of the judgment of the court of first instance, and this part is cited by the main text of Article 420 of the Civil Procedure Act.

2. Judgment on the plaintiff's assertion

A. Summary of the assertion

The actual payer of KRW 92,182,030 in total following the sale of the instant land is the Plaintiff. The registration of transfer of ownership in the name of the Plaintiff from Kim 00, the real owner of the instant land, without any cause, constitutes unjust enrichment because the said transfer income tax was received by the Defendant without any legal cause. Thus, the Defendant shall return the said transfer income tax to the Plaintiff

B. Determination

(1) As for taxes in the form of tax return such as capital gains tax, in principle, the taxpayer's tax base and tax amount are determined specifically by the act of filing a return, and the payment act is the performance of specific tax liability confirmed by the return, and the State or a local government holds the tax amount paid based on the final tax claim as above. Thus, insofar as the act of filing a return by the taxpayer does not automatically become null and void due to a significant and apparent defect, it cannot be deemed as unjust enrichment. Here, as to whether the act of filing a return constitutes abrupty invalidation due to a significant and apparent defect, the purpose, meaning, function, and legal remedy for the act of filing a return should be determined reasonably by examining the specific circumstances that result from the act of filing a return individually and reasonably (see, e.g., Supreme Court Decisions 2003Da4346, May 12, 2005; 2002Da46102, Nov. 22, 2002).

In addition, in order to make an unjust enrichment, the tax payment or the collection of tax must be null and void as it has no legal basis at all in substance or in procedure, or due to the significant and apparent defect of the tax disposition. If the defect of the tax disposition is limited to the extent that the tax disposition can only be revoked, unless the tax authority voluntarily cancels it or cancels it by the appeal procedure (see Supreme Court Decision 94Da2800, Nov. 11, 1994). In order for the tax disposition to be null and void as a matter of course, it is insufficient to say that there is an unlawful ground for the disposition, and the defect must be objectively and objectively in violation of the relevant Acts and subordinate statutes, and it should be objectively clear that the defect is significant and apparent. However, if there is any objective reason to believe that the tax disposition is subject to taxation with respect to any legal relations or factual relations that are not subject to taxation, it cannot be seen that there is a serious defect in the taxation disposition, even if it is found to be unlawful, it cannot be seen that it is unlawful (see Supreme Court Decision 2001Do168.).

(2) As seen earlier, the Plaintiff had the same appearance as the transfer of property at a cost upon the completion of the ownership transfer registration under the Plaintiff’s name for the reason of sale where the ownership transfer registration has been made with respect to the instant land, and there was an objective circumstance that could mislead the Plaintiff to be subject to capital gains tax at least in appearance, insofar as there was voluntary report and payment of capital gains tax consistent with such appearance, and later, even if the registration of ownership transfer was cancelled by stating that the above registration of ownership transfer was a registration of invalidation of cause that was made against Kim 00’s will by public offering with the Plaintiff Park 00, it can be clarified after accurately investigating the facts, and thus, it cannot be deemed that there was a significant and apparent defect in the return and taxation of capital gains tax in the instant case, unless there is any special circumstance that the Defendant’s head of the tax office under the Defendant’s control knew about such circumstance, and thus, the Defendant’s receipt of capital gains tax cannot be deemed as unjust enrichment obtained without any legal ground in relation to the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case, which is premised on the defendant's receipt of capital gains tax as unjust enrichment, shall be dismissed as it is without merit, and the judgment of the court of first instance is just as it is concluded, and the plaintiff's appeal