Resignation Apartment Reconstruction Association (Law Firm Han-gu, Attorney Kim Yong-dae, Counsel for defendant-appellant)

Head of the Dong-gu Busan Metropolitan Government and two others (Attorney Han-tae, Counsel for the defendant-appellant)

March 13, 2009

1. The plaintiff's primary claim against the head of the Dong-gu Busan Metropolitan City is dismissed.

2. The defendant Busan Metropolitan City shall pay to the plaintiff 10,679,660 won, 31,181,400 won to the defendant Republic of Korea, and 5% per annum from July 12, 2008 to April 10, 2009, and 20% per annum from the next day to the day of full payment.

3. All of the plaintiff's respective conjunctive claims against the defendant Busan Metropolitan City and Korea are dismissed.

4. Of the litigation costs, the part arising between the Plaintiff and Defendant Busan Metropolitan City head shall be borne by the Plaintiff; the part arising between the Plaintiff and Defendant Busan Metropolitan City head shall be borne by the Plaintiff; the remainder shall be borne by the Plaintiff; and the part arising between the Plaintiff and the Defendant and the Defendant Republic of Korea shall be borne by the Plaintiff; the remainder shall be borne by the Republic of Korea

5. Paragraph 2 can be provisionally executed.

1. The primary purport of the claim

Defendant Dong-gu Busan Metropolitan Government (hereinafter referred to as the “Dongdong-gu head”)’s revised return on April 22, 2008, which was filed with the Plaintiff by the head of Dong-gu Busan Metropolitan City (hereinafter referred to as the “Dong-dong head”), and the disposition

2. Preliminary purport of claim

The Plaintiff shall pay to the Busan Metropolitan City KRW 535,462,030, Defendant Republic of Korea KRW 53,546,200, and each of them shall pay 20% interest per annum from the day following the delivery of a copy of the instant complaint to the day of full payment.

1. Basic facts

A. The plaintiff is a reconstruction association formed for the purpose of constructing a multi-family housing complex on the land outside Busan Dong-gu (Land Number 1 omitted) and 88 parcels, which was approved by the head of Dong-gu, the competent authority on February 28, 2001, to establish a housing association, and completed the registration of incorporation on July 24, 2003.

B. On January 11, 2003, the Plaintiff obtained approval of the housing construction project plan with the content of constructing an apartment complex in the said reconstruction site, and completed the registration of ownership transfer based on the trust in the Plaintiff’s name after being entrusted with the land from the members of the association (hereinafter “members’ trust land”). At that time, the Plaintiff purchased a total of 24,187 square meters of land from a third party other than the members of the association (hereinafter “non-members’ purchase land”). In most cases, the Plaintiff purchased the land purchased from the Dong-gu Busan Metropolitan City Busan Metropolitan

C. After that, the Plaintiff newly built 2,947 apartment units (2,230 apartment units, 717 apartment units) and 142 commercial buildings (41 units, 41 units, 101 units, and 101 units, respectively) in accordance with the business plan, and obtained authorization of completion around December 7, 2006.

D. Around January 26, 2007, when a registration of ownership preservation has been made for apartment and commercial buildings, apartment and commercial buildings sold in lots to partners are cancelled and at the same time a registration of ownership preservation has been completed in the future for the members following a registration of a site ownership, and apartment and commercial buildings sold in lots to the general public have completed the registration of ownership preservation in the future of the Plaintiff following the registration of a site ownership.

The site area of the above apartment and commercial building refers to one parcel of land on which a new lot number is assigned with a total of 117,006 square meters (number 2 omitted), and it refers to an apartment site. The site area of the above apartment and commercial building refers to one parcel of land on which a new lot number is assigned. From the total land for business purpose 13,243 square meters (number 3 omitted), school sites where a new lot number is assigned (number 4 omitted), (number 5 omitted), (number 6 omitted), (number 6 omitted), and (number 7 omitted), and the site area corresponding to the general parcel portion is 30,773.68 square meters [number 30,73.68 square meters (number 2 omitted, number 20,000 square meters (number 2 omitted), but this appears to be a clerical error, which is 20,807.22 square meters (number 30,000 square meters) and 254,000 square meters in general land (number 3754,07.257 square meters in lots);

E. A public official of the head of the Dong-dong government, around December 2006, provided guidance on acquisition tax and special agricultural and fishing villages tax for the entire land (including the portion of land purchased other than the portion of land trusted by a cooperative member) on the ground that the Plaintiff Union acquired a real ownership by having registered the ownership of the land in the name of the Plaintiff on the land sold in lots (the acquisition tax is Busan Metropolitan City tax and the special agricultural and fishing villages tax to be paid incidental thereto is delegated to the head of the Dong-dong government, and the tax collection affairs are delegated to the head of the above tax). Accordingly, on December 20, 206, the Plaintiff reported acquisition tax and special agricultural and fishing villages tax for less than 26,773,101,60 won (30,773.68 square meters x 870,000,000 won x 26,773,101,600 won x 205,000 won (hereinafter referred to as “special agricultural and fishing villages tax”) x less than 2630.5% (hereinafter the same).

F. After that, the Plaintiff did not file an administrative appeal or administrative litigation against the preceding disposition. On February 14, 2008, the Supreme Court rendered a judgment that “the land for general sale, which was disposed of to a person other than a partner, among the land acquired by trust from a partner, shall not be subject to acquisition tax.” On April 14, 2008, the Plaintiff submitted a revised return and a request for refund of the amount of tax overpaid or erroneously paid (hereinafter “the revised return of this case”) to the head of the Defendant Dong-dong (hereinafter “the revised return of this case”). Accordingly, the head of the Defendant Dong-dong rendered a disposition to reject the revised report of this case on the ground that the revised report does not constitute the grounds for filing a revised report under Article 71(1) of the Local Tax Act and Article 53 subparag. 2 of the Enforcement Decree of the same Act (hereinafter “the disposition of this case”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 26, Eul evidence 1 to 3, Eul evidence 1 to 4, Eul evidence 1 to 2, Eul evidence 1 and 2 (including provisional number), the purport of the whole pleadings

2. Determination as to the plaintiff's claim against the head of the Dongdong-gu (main claim)

A. The plaintiff's assertion

The reason for filing a revised return under the Local Tax Act shall be widely interpreted as an example listed in the Local Tax Act, and it shall include cases where there are reasons to change the reported matters due to a special change in circumstances after the establishment of taxation requirements in terms of the protection of taxpayers' rights. The Enforcement Decree of the Local Tax Act provides that a revised return may be filed within 60 days from the "the date on which a court has made a final judgment in cases of litigation," and the above final judgment shall include not only the case in question but also the final judgment in the same case. However, the disposition of this case which rejected the revised return submitted on April 14, 2008, which was within 60 days from the date of the Supreme Court ruling, was unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

The reason for a revised return under the Local Tax Act is like the plaintiff's assertion that the revised return should be widely interpreted to include the case where there is any inevitable reason to change the matters to be returned and paid due to a change in the special circumstances after the establishment of taxation requirements in terms of the protection of taxpayers' rights. However, construing the "final and conclusive judgment" as stipulated in Article 71 (1) 1 of the Local Tax Act and Article 53 subparagraph 2 of the Enforcement Decree of the same Act to include all final and conclusive judgments of the same case, not the case, is inconsistent with the interpretation of the language and text, and it is not permissible in terms of legal stability. Thus, the disposition of this case which returned the revised return is legitimate, and the plaintiff'

3. Determination on the Plaintiff’s claim against Defendant Busan Metropolitan City and Korea (Preliminary Claim)

A. Determination on Defendant Republic of Korea’s main defense

(1) Defendant Republic of Korea’s assertion

(A) An administrative litigation is the primary claim, and it is not allowed to file a civil lawsuit by combining it with a preliminary claim.

(B) As the Plaintiff’s objective can be achieved by seeking cancellation or invalidation of the instant disposition against the head of the Dong-gu, Defendant Republic of Korea, etc., there is no interest in the lawsuit against the Defendant Republic of Korea, etc.

(C) Defendant Republic of Korea does not have any administrative disposition against the Plaintiff, and thus, Defendant Republic of Korea’s lawsuit against Defendant Republic of Korea is not recognized as a party’s standing.

(2) Determination

(A) Article 10(2) of the Administrative Litigation Act provides that “In a revocation lawsuit, a related claim may be joined in the court in which the litigation for revocation is pending, or a related claim lawsuit against a person other than the defendant may be instituted concurrently with the court in which the litigation for revocation is pending, until the closure of arguments in the fact-finding court.” In full view of Article 15 of the Administrative Litigation Act provides that “only where a claim against a person is related to the claim for revocation of a disposition, etc., such person may become a co-litigants, the person may become a co-litigants,” it shall be permitted to join the relevant civil lawsuit

(B) separate from seeking the cancellation or invalidation of the instant disposition against Defendant Dongdong-gu, the Plaintiff has a legal interest in filing a lawsuit against Defendant Korea, etc. for a claim for restitution of unjust enrichment. Therefore, this part of the Defendant Republic of Korea’s assertion is without merit.

(C) The Plaintiff brought a civil suit against the Defendant Republic of Korea seeking a return of unjust enrichment. Although the Defendant Republic of Korea did not directly take a disposition against the Plaintiff, the above agricultural special tax belongs to the Defendant Republic of Korea as a national tax, and the Plaintiff can seek a return of unjust enrichment against the Defendant Republic of Korea, who is the subject of the benefit of the preceding disposition, on the premise that the preceding disposition is null and void. Therefore, this part of the Defendant Republic

B. Judgment on the merits

(1) The part corresponding to the trust land of association members among the land sold in general

(A) The plaintiff's assertion

The plaintiff, although the part corresponding to the trust land of the union members among the land sold in general, is transferred to the ownership from the union members due to trust and is not subject to acquisition tax, the defendant Dong-dong head provided the plaintiff with information on the return of acquisition tax and agricultural special tax and notified the plaintiff to bear penalty tax in the event of a failure to file a return, thereby allowing the plaintiff to report and pay the acquisition tax of this case and agricultural special tax. The plaintiff asserted that the prior disposition of this case constitutes abrupt invalidation because there is a significant and obvious defect that there is no room for recognizing the ability to confirm the tax obligation, and thus, it constitutes abrupty

(B) Progress the amendment of Article 110 of the Local Tax Act and the process of dispute over acquisition tax assessment after amendment of the Local Tax Act

(1) Acquisition subject to acquisition tax means original acquisition, acquisition by succession or with or without compensation, or creation of land through reclamation, etc., such as sale, exchange, inheritance, gift, contribution, contribution, investment in kind to a juristic person, construction, repair, reclamation of public waters, creation of land through reclamation, etc. (Article 104 Subparag. 8 of the Local Tax Act). Article 110 Subparag. 1 of the former Local Tax Act (amended by Act No. 5406 of Aug. 30, 197) (hereinafter “former Local Tax Act”) provides that acquisition by trust (limited to a trust under the Trust Act and accompanied by a registration of trust) shall not be imposed on a new trustee. (a) Acquisition by transfer of trust property from a truster to a truster. (b) Acquisition by transfer from a trustee due to the termination or termination of the trust; (c) Acquisition by transfer of trust property from a trustee to a truster.

(2) However, by the amendment of the Local Tax Act of August 30, 1997 (hereinafter the amended Act referred to as the "Local Tax Act") Article 105 (10) of the Local Tax Act, the provision of Article 105 (10) of the Housing Construction Promotion Act provides that "real estate (referring to multi-family housing, incidental and welfare facilities, and land annexed thereto) acquired by a housing association under the provisions of Article 44 of the Housing Construction Promotion Act for its members shall be deemed to have been acquired by its members," and at the same time, Article 110 subparagraph 1 of the same Act provides that "excluding acquisition of trust property between the housing association under the provisions of Article 44 of the Housing Construction Promotion Act and the members of its association" is newly established and thus, the acquisition of trust property falling under the provisions of the proviso

(3) Even after the amendment of the Local Tax Act on August 30, 1997, in Seoul, the Seoul Special Metropolitan City and the defendant Republic of Korea did not impose tax on the acquisition of land for general sale of the reconstruction association, and they began to impose tax only on the land for general sale from 2002. The Minister of Government Administration and Home Affairs stated that the land for general sale of the reconstruction association is subject to acquisition tax, and the head of the Gu delegated by the Seoul Special Metropolitan City shall collect acquisition tax from the reconstruction association in the form of report and payment, from the reconstruction association, on the land for general sale of the reconstruction association until now.

(4) On the other hand, the Ministry of Government Legislation, after amendment, interpreted that “The acquisition of trust property between the housing reconstruction association and the association members is excluded from the object of non-taxation under the proviso of Article 110 subparag. 1 of the Local Tax Act, and Article 105(10) of the same Act provides that the real estate for the association housing (referring to apartment houses, incidental facilities, welfare facilities, and land annexed thereto) acquired by the housing reconstruction association for the association members shall be acquired by the association members. On the other hand, in the case of land for general sale, the reconstruction association acquired it and the obligation to pay acquisition tax arises, and the time when the obligation to pay acquisition tax for the land for general sale, which is liable to pay acquisition tax, shall be deemed to be the date

(5) Many reconstruction associations filed a lawsuit seeking revocation of acquisition tax, etc. on the collection of acquisition tax, etc. as above in Seoul Special Metropolitan City and defendant Republic of Korea. In this lawsuit, some lower courts held that the collection of acquisition tax, etc. is legitimate in the position that the reconstruction association should impose acquisition tax in case it acquires land for general sale as a trust, and other lower courts have divided the opinions that the collection of acquisition tax, etc. is illegal in the position that the reconstruction association does not impose acquisition tax, etc. on the land acquired from the members of the reconstruction association from the members of the association without being used for general sale (non-taxation theory).

(6) On February 14, 2008, the Supreme Court held that "where a housing association acquires land owned by a member of the association as real estate for the association, and has completed a trust registration, the portion corresponding to the land for the association member shall be deemed to have been acquired by the association member pursuant to Article 105 (10) of the Local Tax Act after the amendment, it shall not be subject to acquisition tax against the housing association, and the proviso of Article 110 subparagraph 1 shall not apply, and the main sentence of Article 110 subparagraph 1 shall not apply, and this shall not be subject to acquisition tax against the housing association, and shall not be subject to acquisition tax against the housing association (see Supreme Court Decisions 2006Du15929, Feb. 14, 2008; 2006Du9320, Feb. 14, 2008, etc.).

(C) Determination

(1) The acquisition and registration taxes are taxes in the form of tax return, as a matter of principle, the tax liability is determined by the taxpayer's act of setting his tax base and tax amount and filing the return specifically, and the payment act is the performance of specific tax liability determined by the return, and local governments hold the tax amount paid based on the final tax claim as above. Thus, unless the taxpayer's filing act is void as a matter of course due to significant and apparent defects, it shall not be deemed as unjust enrichment.

Here, as to whether a defect in the act of reporting constitutes the invalidation of a year-end report due to a significant and apparent defect, the purpose, meaning, function, and legal remedy for the defective act of reporting should be considered as a basis for the act of reporting from a teleological perspective, and at the same time, specific circumstances leading to the act of reporting should be individually identified and determined (see Supreme Court Decisions 9Da31419, Feb. 28, 1995; 99Da11618, Apr. 27, 2001, etc.).

In a case where an administrative disposition (including a declaration and payment which is recognized as a disposition) was taken by an administrative agency through the application or exclusion of a certain statute on a certain legal relation or fact, if the administrative agency made a disposition by applying or excluding the application of the above statute, notwithstanding the absence of room for dispute over the interpretation since the legal principles on the application of the law clearly stated in the above legal relation or fact, it shall be deemed that the defect is grave and obvious. However, if there is room for dispute over the interpretation of the law because the legal principles on the application of the law as to the legal relation or fact clearly revealed, it shall not be deemed that even if the administrative disposition was taken by erroneous interpretation of the law, it merely misleads the facts about the requirements for the disposition (see Supreme Court Decisions 95Da46722, May 9, 1997; 2002Da68485, Oct. 15, 2004, etc.).

(2) The fact that the appeal period against the instant preceding disposition was elapsed due to the lapse of the time limit for filing an administrative litigation against the instant preceding disposition is apparent. As a premise of the occurrence of the obligation to return unjust enrichment to the acquisition tax or agricultural special tax collected by the Plaintiff from Defendant Busan Metropolitan City and the Republic of Korea, it is examined as to whether the defect of the instant preceding disposition is deemed null and void as it is significant and apparent.

The following circumstances revealed by the above facts. ① After the amendment of the Local Tax Act, Defendant Republic of Korea, etc. commenced taxation on the land of the reconstruction association from the viewpoint of the taxation theory since 2002, and thereafter, the Seoul Special Metropolitan City and other relevant public officials, including the Ministry of Government Administration and Home Affairs, have carried out the duty of declaration and payment of acquisition tax, etc.; ② After the amendment, the Local Tax Act’s interpretation that the meaning of “for union members” under Article 105(10) is compared to “for the purpose of general sale,” it is difficult for the association to acquire land for general sale from its members. Since trust between the association and its members pursuant to the proviso of Article 110 subparag. 1 of the same Act is subject to acquisition tax, it is difficult to interpret that the association should impose acquisition tax if it acquires land for general sale as trust; ③ In this case, it is difficult to see that the head of the tax office reported and paid tax in advance by the Supreme Court, based on the premise that the above tax exemption theory and non-taxation theory are mixed with the above taxation theory.

(2) The part corresponding to the land purchased by non-member of the union among the land sold in general

(A) The party's assertion

1) Although it is apparent that the Plaintiff had already paid acquisition tax and agricultural special tax (hereinafter “acquisition tax, etc.”) at the time of acquiring 24,187 m24,87 m2,000 square meters of land purchased by non-member of the Plaintiff, the Plaintiff had no liability to pay additional acquisition tax, etc. on this part, due to the erroneous administrative guidance given by the head of the Dong-dong Office, thereby having again paid acquisition tax, etc. on the entire land purchased by non-member of the Plaintiff, which was purchased as part of the land for general sale through the preceding disposition of this case. Such double tax payment constitutes abrupt invalidation due to significant and apparent defect, and thus, the Defendant Busan Metropolitan City and the Republic of Korea should return the total amount of unjust enrichment (420,867,720 won of acquisition tax + agricultural special tax + 42,086,760 won).

이에 대하여 위 피고들은, 설령 원고의 주장과 같은 이중과세가 문제된다고 하더라도 그 면적은 전체 일반분양분 토지 면적 30,773.68㎡에서, 전체 사업용 토지 면적 133,243㎡ 중 조합원외 매입토지 면적 24,187.8㎡이 차지하는 비율(약 18.15%)로 안분된 면적 약 5585.96㎡(≒ 30,773.68㎡ × 18.15%)뿐이고, 원고가 납부한 취득세 등은 원고 스스로 계산하여 신고납부한 것이므로 설령 그 계산에 착오가 있었다고 하여도 그 하자가 명백한 것이라고 보기는 어렵다 할 것이므로 당연무효는 아니라고 다툰다.

2) Although it is apparent in accordance with the provisions of the Act that no tax is imposed on the national housing with an area of 85 square meters or less, the Plaintiff asserts that the Defendant’s Republic of Korea should return unjust enrichment (the amount equivalent to 47.35% of the remainder of the agricultural special tax, excluding the agricultural special tax corresponding to the land purchased by non-member of the association, from among the land for general sale, which is equivalent to approximately 47.35% of the total general sale, due to the erroneous administrative guidance by the head of the Dong-dong office, on the land for national housing equivalent to about 14,572.392 square meters of the land for general sale.

3) The Plaintiff asserts that the Plaintiff’s payment of acquisition tax and registration tax on the part of the donation road constitutes double taxation, since the Plaintiff paid the acquisition tax and registration tax when acquiring the land including the road portion that was donated from the Gangseo-gu Busan Metropolitan City, as it is obvious that the said part of the road was exempt from acquisition tax and registration tax, which was donated to the local government during the instant rebuilding process, is also a matter of double taxation.

(B) Determination

1) Determination on the first argument

A) There is no dispute between the parties, or in full view of the purport of the entire pleadings in each of the statements in Gap evidence (including the serial number) Nos. 9 through 22, the fact that the plaintiff paid acquisition tax, etc. when acquiring the land purchased by non-member of the association can be recognized. Thus, in the preceding disposition of this case, the return and payment of acquisition tax, etc. to the corresponding portion of the

B) Next, the Plaintiff asserts that the entire land purchased by non-member of the association was the land for general sale, and that it constitutes only the area divided in proportion to the ratio of the area of the land purchased by non-member of the association to the area of the land for general sale.

However, the following circumstances acknowledged by the evidence as follows: (a) the size of the entire land for business that the Plaintiff implemented a reconstruction project includes the trust land and the land purchased by non-member of the association; (b) each of the above land was implemented by a reconstruction project after forming a group of land; (c) the entire apartment and commercial buildings were partitioned into one parcel of land; (d) the total size of the apartment and commercial buildings was replaced with the land of one parcel of land; and (e) the land purchased by non-member of the association was scattered into several divisions; and (e) the apartment and commercial buildings were substituted with the land of one parcel of land, and the apartment and commercial buildings were constructed separately from the land of one parcel of land, and the apartment and commercial buildings were not constructed separately, as alleged by the Plaintiff, it is difficult to deem that the entire land purchased by non-member of the association, as alleged by the Plaintiff, was the land for general sale as the land for non-member of the association (per being written in the evidence No. 2

In addition, it is not appropriate to calculate double taxation by multiplying the ratio of the area of land purchased by non-member of the association to the area of land for whole business to the area of land for general sale, as alleged by the aforementioned Defendants, inasmuch as all of the land for purchase outside the association is included in the apartment site, and the entire land for business is divided into school sites and road sites as well as the apartment site.

따라서 이중과세에 해당하는 부분의 면적은 일반분양분 토지 30,773.68㎡에서, 아파트 대지 면적 117,006㎡ 중 조합원외 매입토지 면적 24,187.8㎡이 차지하는 비율(약 20.67%)로 안분된 면적 약 6360.9㎡(≒ 30,773.68㎡ × 20.67%)로 봄이 상당하다.

C) Next, as alleged by the above Defendants, even if the Plaintiff voluntarily paid and paid the acquisition tax, etc. by filing a return on the method of tax payment, as to whether the above double taxation defect is apparent, considering the Plaintiff’s statement Nos. 16-1, 2, 17-1 through 26 of the evidence No. 16-1, 17-2, and the Nonparty’s testimony, the Plaintiff’s opinion exchange between the Plaintiff and the public officials under his/her control in determining the amount of the acquisition tax, etc. by taking account of the overall purport of the Nonparty’s testimony, and the Plaintiff paid the acquisition tax and the agricultural special tax when acquiring the land from a third party before that, and the land purchased from a third party was an apartment site, it can be recognized that the competent authority of the reconstruction project implemented by the Plaintiff has evident fact that the Plaintiff had collected acquisition tax and the agricultural special tax from the head of his/her head of his/her head of his/her Dong-dong, and thus, the Plaintiff’s act of purchase corresponding to the portion of the land purchased by non-party’s members constitutes an act of tax invalidity.

D) Meanwhile, as acquisition tax returns are conducted between a taxpayer and a tax authority, the protection of a third party who trusted the existence of acquisition tax returns is not particularly problematic and thus, even if such returns are null and void, it does not seriously undermine legal stability. On the other hand, even if there are serious defects in taxation requirements, etc., and the legal remedies are relatively insufficient compared with national taxes, and it is reasonable to exceptionally consider special circumstances to consider the stability of tax administration and the request for the smooth operation thereof as being considerably unreasonable in terms of protecting rights and interests of a taxpayer even if taking into account the stability of tax administration and the request for the smooth operation thereof, if there are special circumstances to deem that such defect reports are considerably unfair in terms of protecting rights and interests of a taxpayer (see Supreme Court Decision 2008Du11716, Feb. 12, 200

In this case, even if the defect of double taxation is not clear, the following circumstances revealed by the evidence mentioned above, i.e., the act of reporting acquisition tax, etc. corresponding to the land sold in lots among the land purchased by non-member of the association, which is not particularly an issue of protection of a third party trust in its existence, and thus, it seems that the act of reporting is not significantly detrimental to legal stability even if the act of reporting is null and void as a result of the fact that the Plaintiff had already paid acquisition tax, etc. when the Plaintiff acquired land purchased by non-member of the association. As such, it is obvious that the above act of reporting constitutes double taxation, and even if the legal remedy is relatively insufficient compared to the national tax, it seems significantly unfair from the perspective of remedy for the Plaintiff’s rights and interests, and even if the legal remedy is relatively insufficient, it is difficult to conclude that the act of reporting is null and void as it impedes the smooth operation of the tax administration.

If so, the reporting of acquisition tax and agricultural special tax corresponding to the land purchased by non-member of the association among the land sold in general can be seen as null and void a year.

E) Therefore, Defendant Busan Metropolitan City is obligated to return the amount overpaid or erroneously paid (10,679,660 won (tax base 5,533,983,000 won x 870,000 won x 2%) x 11,067,960 won (acquisition tax 110,679,660 x 10%) to the Plaintiff as unjust enrichment.

2) Determination on the second argument

A) Comprehensively considering the relevant provisions, such as the Special Rural Development Tax, the Enforcement Decree of the Act on Special Rural Development Tax, the Housing Act, etc., the Act on Special Rural Development Tax, provides that national housing with an exclusive residential area of 85 square meters or less per household and the land appurtenant thereto shall be exempt from the agricultural special tax. In full view of the purport of the entire pleadings in the statement in subparagraph 1, the fact that the Plaintiff reported agricultural special tax, when filing a return on the farmland special tax, shall be recognized as having entered the form and the site area at the time of the Plaintiff’s filing of the report on the farmland special tax, and the calculation of the exclusive residential area is apparent in the calculation (a)

Therefore, even though it is clear that a public official under the jurisdiction of the head of the Dong-dong government would be eligible for exemption from the agricultural special tax pursuant to the provisions of law, if the plaintiff reported and paid the agricultural special tax including this part to avoid the imposition of additional tax, as seen earlier, as the public official under the jurisdiction of the head of the Dong-dong government instructed the payment of the agricultural special tax to the entire land for general sale, including the part corresponding to the national housing scale, the act of reporting the agricultural special tax equivalent to the national housing scale among the trust land for the members of the land for general sale

B) Therefore, Defendant Republic of Korea is obligated to return to the Plaintiff additional tax amounting to 20,113,440 won by erroneous payment of the agricultural special tax (53,546,200 won by the Plaintiff - the agricultural special tax that was already paid by the Plaintiff 1,067,960 won x 47.35% of the above national housing portion) as unjust enrichment.

3) Judgment on the third argument

Unlike whether the 6,487 square meters of a road donated to Dong-gu Busan Metropolitan City is subject to acquisition tax and registration tax exemption, the prior disposition of this case, which the plaintiff claims that the plaintiff is null and void, is related to the land of general sale among the apartment sites located in the Dong-gu, Busan Metropolitan City (number 2 omitted), is also recognized by the plaintiff. Since the part of the donated road is not included in the apartment site, it cannot affect the conclusion of this case, the double taxation of the donated road portion does not affect the conclusion of this case, and due to such circumstance, it cannot be argued that the part corresponding to the whole purchase land of non-member land among the land of general sale is double taxation. Therefore, this part of the plaintiff's assertion is without merit

(C) Sub-decisions

In conclusion, Defendant Busan Metropolitan City is obligated to pay damages for delay at each rate of 110,679,660 won to the Plaintiff, and 31,181,40 won to the Defendant Republic of Korea (11,067,960 won + 20,113,440 won) and 5% per annum under the Civil Act from July 12, 2008 to April 10, 2009, which is the day following the delivery date of the complaint of this case, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

4. Conclusion

Therefore, the plaintiff's main claim against the head of Dong-dong is dismissed as it is without merit, and the plaintiff's main claim against the defendant Busan Metropolitan City and the Republic of Korea is accepted within the above scope of recognition, and each conjunctive claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment Form 5]

Judges Cho Sung-sung (Presiding Judge)