Korea Industrial Complex Corporation (Law Firm Barun Law, Attorneys Choi Do-young et al., Counsel for the defendant-appellant)

Seoul Special Metropolitan City (Law Firm Jeong, Attorneys Park Sung-chul et al., Counsel for defendant-appellant)

February 26, 2008

1. The defendant shall pay to the plaintiff 483,812,320 won with 20% interest per annum from December 11, 2007 to the day of full payment.

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

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each of the statements in Gap evidence 1-1, 2, 2-1, 2-2, 3-6, and 1-3.

A. The Plaintiff is a corporation established for the purpose of developing and managing an industrial complex and supporting the industrial activities of enterprises pursuant to Article 45-3 of the Industrial Cluster Development and Factory Establishment Act, and is an operator of an industrial complex development project pursuant to Article 16(1)2 of the Industrial Sites and Development Act.

B. Of the old-ro industrial complex (former Seoul Digital Industrial Complex), the third complex was designated as an industrial complex from the Ministry of Construction on January 5, 1970, and was developed and developed by the Korea Export Industry Corporation, the overall body of the Plaintiff. Around 1976, the Plaintiff constructed a rental life center for female workers in Geumcheon-gu Seoul, the support facility area in the above complex (number omitted). around 1990, the above living hall was reconstructed into ○ apartment. around 2004, after obtaining a building permit for constructing an officetel on the above land, around December 15, 2006, the office building was newly constructed on the 15th above ground and the 1st above ground floor (hereinafter “the instant officetel”). The instant officetel consists of 388 business facilities and 12 commercial buildings (class 1 and Class 2 neighborhood living facilities).

C. Before completing registration of preservation of ownership of the instant officetel, the Plaintiff asked public officials of the Geumcheon-gu Office, who are delegated by the Defendant with the collection of acquisition tax and registration tax, to question whether the instant officetel is eligible for exemption from acquisition tax and registration tax. The Plaintiff responded from the above public officials that the instant officetel does not constitute real estate eligible for exemption under Article 276(3) of the Local Tax Act.

D. On January 11, 2007, the Plaintiff voluntarily paid acquisition tax of KRW 345,580,230 and registration tax of KRW 138,232,320 (===345,580,230 + 138,812,320 + 138,232,090 + 138,232,090) to the Geumcheon-gu Office under the Defendant’s control in order to avoid imposition of additional charges due to failure to pay taxes, such as acquisition tax, etc., and to promptly complete registration of preservation of ownership on the instant officetels (hereinafter “instant return and payment”).

E. On February 21, 2007, the Plaintiff filed an objection with the Minister of Government Administration and Home Affairs to the effect that since the instant officetel was acquired by the operator of an industrial complex development project for the purpose of developing, developing and selling or leasing an industrial complex, it constitutes real estate for business purposes under Article 45-7 (1) 3 of the Industrial Sites and Development Act, the Plaintiff shall be exempted from acquisition tax and registration tax pursuant to Article 276 (3) of the Local Tax Act. However, the Plaintiff received a decision of dismissal, and the Plaintiff filed a request for examination with the Minister of Government Administration and Home Affairs around June 2007, which was also dismissed.

2. Related statutes;

It is as shown in the attached Form.

3. The assertion and judgment

A. The assertion

(1) The Plaintiff asserts that the instant officetel is a real estate acquired by the operator of an industrial complex development project under Article 16 of the Industrial Sites and Development Act for the purpose of developing, developing, selling in lots, or leasing the industrial complex, and that it is a real estate for support facilities as stipulated in Article 45-7 (1) 3 of the Industrial Cluster Development and Factory Establishment Act, and thus, the Plaintiff is exempted from acquisition tax and registration tax pursuant to Article 276 (3) of the Local Tax Act. However, the Plaintiff paid the instant return and payment in order to avoid imposition of additional dues due to failure to pay voluntary declarations and to complete the registration of ownership transfer promptly, but this constitutes a case where the registration of ownership transfer is completed promptly due to apparent and obviousness, and thus, the Defendant obtained profits equivalent to the acquisition tax and registration tax without any legal ground and thereby causes damage equivalent to the same amount to the Plaintiff. Thus, the Defendant is obligated to return the acquisition tax and registration tax and the total amount of KRW 483,812,320, which are unjust gains

(2) As to this, the Defendant asserts that the instant officetel is not real estate acquired by the Plaintiff in the process of directly developing and developing the Seoul Digital Industrial Complex, but real estate constructed at the managing level of the Seoul Digital Industrial Complex. ② Support facilities stipulated in Article 45-7(1)3 of the Industrial Cluster Development and Factory Establishment Act are limited to apartment-type factories stipulated in Article 28-5(1)3 of the same Act. The instant officetel is not support facilities for apartment-type factories. It does not constitute apartment-type factories.

B. Determination

(1) Whether Article 276(3) of the Local Tax Act is applicable

Article 276 (3) of the Local Tax Act provides that "real estate acquired by an operator of an industrial complex development project under the provisions of Article 16 of the Industrial Sites and Development Act for the purpose of sale or lease (in the case of the plaintiff established under the provisions of the Industrial Cluster Development and Factory Establishment Act, including real estate for business under Article 45-7 (1) 3 and 5 of the same Act)" shall be exempted from acquisition tax and registration tax. Article 2 subparagraph 6 of the Industrial Sites and Development Act provides that "industrial complex development projects" shall include land for business facilities, etc. for building industrial complexes (c) for improvement of efficiency of industrial complex, land for residential facilities, etc. (i.e., building of apartment-type factory and apartment-type factory facilities) for improvement of functions of industrial complex, and land for other business (i.e., building of apartment-type factory and apartment-type factory facilities) incidental to the above business, and Article 16 (1) 2 of the same Act provides that "the plaintiff shall be exempted from acquisition tax and industrial complex development facilities," and (ii facilities of the plaintiff and industrial complex, etc.

Therefore, the instant officetel is a residential facility to enhance the efficiency of industrial complexes at the same time, and the neighborhood living facilities are the business facilities incidental to the above business, and the neighborhood living facilities are the industrial complex development facilities falling under subparagraph 6 (c), (d), and (i) of Article 2 of the Industrial Sites and Development Act, and as a whole, it is reasonable to view that the Plaintiff, who is the executor of the industrial complex development project, is exempted from the acquisition tax and the registration tax pursuant to Article 276 (3) of the Local Tax Act because the instant officetel falls under the real estate acquired by the Plaintiff, who is the executor of the industrial complex development project, for the purpose of developing, developing, selling, or leasing the industrial complex

(2) Whether the instant return and payment was void as a matter of course

As a matter of principle, the acquisition tax and registration tax are taxes in the form of tax return, in which a taxpayer is obligated to pay taxes, and as a matter of principle, the tax liability is specifically determined by the act of filing a tax base and amount of tax (limited to the case where a tax office does not file a tax return from a taxpayer). The payment is the performance of specific tax liability confirmed by a tax return, and the State or a local government holds the tax amount paid based on such finalized tax claim. As such, the tax amount paid cannot be deemed as unjust enrichment unless the taxpayer's act of filing a tax return is void automatically due to a grave and obvious defect. Here, as to whether the act of filing a tax return constitutes void automatically due to a grave and apparent defect, the purpose, meaning, function, and legal remedy for the act of filing a tax return at the same time shall be determined on an individual basis of specific circumstances leading to the act of filing a tax return (see, e.g., Supreme Court Decision 94Da31419, Feb. 28, 1995).

4. Conclusion

Therefore, the defendant shall gain profits from the total amount of 483,812,320 won, including registration tax, etc. paid by the plaintiff without any legal ground, and thereby, the plaintiff shall incur losses equivalent to the same amount. Thus, the defendant shall be obligated to pay to the plaintiff the total amount of 483,812,320 won, including acquisition tax, etc. unjustly obtained by the plaintiff, and the next day on which the copy of the complaint of this case sought by the plaintiff is served to the defendant, which is clearly from December 11, 2007 to the day of full payment, 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from December 11, 2007 to the day of full payment.

Judges Lee Jin-ro (Presiding Judge)