(영문) 서울중앙지방법원 2015. 05. 27. 선고 2014가단5354618 판결

1. Defendant Republic of Korea shall pay to the Plaintiff 2,255,670 won with 5% interest per annum from January 1, 2010 to January 13, 2015, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's primary claim and the conjunctive claim against the defendant Nam-ju are dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Nam-si is assessed against the Plaintiff, and the part arising between the Plaintiff and the Defendant Republic of Korea respectively.

4. Paragraph 1 can be provisionally executed.

Cheong-gu Office

In the first place, from January 1, 2010, Defendant Nam-si paid 24,812,730 won to the Plaintiff with 5% interest per annum from the day of delivery of a copy of the application for modification of the claim and the cause of the claim in this case, and 20% interest per annum from the next day to the day of complete payment.

Preliminaryly, Defendant Nam-si shall pay to the Plaintiff 22,56,700 won with 5% interest per annum from January 1, 2010 to the delivery date of a copy of the instant complaint; 20% interest per annum from the next day to the date of complete payment; Defendant Republic of Korea shall pay 2,255,670 won per annum from January 1, 2010 to the delivery date of a copy of the instant complaint; and 5% interest per annum from the next day to the date of complete payment; and 20% interest per annum from the next day to the date of complete payment.

Reasons

1. Basic facts

A. The network BB owned the land of this case 2,648 square meters and 17-2 forest 3,967 square meters (hereinafter “each land of this case”). On September 2, 2008, when the deceased died, the Plaintiff and DDD agreed on the respective land of this case 2/5 shares, DD3/5 shares, and completed the registration of transfer of ownership based on inheritance by each of the agreements division as of February 23, 2009 as of the respective land of this case under Article 16422 of the Namyang-gu District Court, the Namyang District Court, the 16422, the receipt on February 23, 2009, respectively.

B. On February 23, 2009, the Plaintiff and DD paid acquisition tax to pay KRW 44,003,720 on the same day, including acquisition tax of KRW 40,003,390, special rural development tax of KRW 4,000,330, etc. with respect to the inheritance of each of the instant lands from the Namyang-ju market.

C. On February 23, 2009, the Plaintiff imposed reduction and exemption of acquisition tax and registration tax, etc. on the ground that it is farmland on the inheritance of each of the instant land from the Namyang market on November 2, 2009. However, each of the instant land is not farmland on the public register, but forest and site, so it cannot be reduced or exempted. As such, each of the instant land cannot be subject to reduction and exemption, the Plaintiff’s imposition of acquisition tax and special tax for rural development, 22,55,870 won and special tax for rural development, 7,30,30,920 won, registration tax and special tax for rural development, and 1,46,180 won, excluding the tax already paid, shall be notified of the difference in the acquisition tax and special tax for rural development, etc. on December 31 of the same year.

D. Each land of this case has been used as an orchard since October 7, 2004 to the present date, and the farmland ledger stated that each land of this case is an orchard where the land of this case is unique, unlike its land category entered in the public register.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4, Gap evidence 5-1 and 2, the purport of the whole pleadings

2. Relevant provisions;

former Local Tax Act (Amended by Act No. 9422, Feb. 6, 2009)

§ 261. Reduction or exemption for farmland, etc. of a self-employed farmer

(1) 50/100 of the acquisition tax and the registration tax shall be reduced for farmland (referring to land for rice paddy, field field, orchard and stock farm; hereafter the same shall apply in this Section) acquired for the purpose of direct cultivation according to the standards as prescribed by the Presidential Decree, or for woodland acquired for the purpose of creating farmland pursuant to the provisions of related Acts and subordinate statutes, by a person who has been engaged in agriculture as his main business for not less than two years, a successor to agriculture, or a person who has completed or attends an agricultural school or agriculture course (hereafter referred to as a "self

Enforcement Decree of the former Local Tax Act (amended by Presidential Decree No. 21480 of May 6, 2009)

Section D: Acquisition tax

Article 77 (Imposition on Basis of Conditions at Time of Acquisition)

Real estate (excluding mining rights and fishing rights), vehicles, machinery equipment or aircraft shall be registered in the public register, etc.

It shall be imposed according to the current status of the relevant goods at the time of de facto acquisition, regardless of matters registered.

SECTION E. Registration Tax

Article 89 (Definition Provisions)

(1) For the provisions of Section 5 of Chapter II of the Act, one case means one case to be registered. The same shall also apply where several persons to be registered are registered and registered upon application in a lump sum in accordance with the relevant Acts and subordinate statutes, such as the Registration of Real Estate Act, etc.

(2) Farmland in Article 131 (1) of the Act means the following land:

1. Land, the land category of which on the public register as at the time of registration is a field, paddy field, or orchard, and which is actually used for the cultivation of agricultural crops or perennial plants;

Gu Act on Special Rural Development Tax (amended by Act No. 9484, Mar. 18, 2009)

Article 3 (Taxpayer)

Those who fall under one of the following subparagraphs shall be liable to pay the special rural development tax under the provisions of this Act:

5. Any taxpayer liable to pay the acquisition tax or leisure tax under the Local Tax Act;

Article 4 (Non-Taxation)

No special rural development tax shall be levied on the following cases:

10. Acquisition tax for farming land or forest land subject to the application of Article 261 (1) of the Local Tax Act;

3. The plaintiff's assertion

A. Main assertion

In full view of the above relevant provisions, in the case of registration tax, the land category entered in the public register as at the time of registration is farmland, and the actual status of land can be reduced by 50% as at the time of acquisition, but in the case of acquisition tax, it can be reduced by 50% if the actual status is farmland at the time of acquisition. However, in the case of acquisition tax, it can be reduced by 50%. However, in order to obtain 50% reduction or exemption without distinguishing the acquisition tax and the registration tax, EE of Do 2 Team public officials in Namyang-si and Do 2 team in order to obtain 50% reduction or exemption from the land category in the public register and the actual status of the land should be farmland. The plaintiff is believed to be correct, and the plaintiff suffered losses from additional payment of acquisition tax amounting to 24,812,370 won, including the total amount of acquisition tax, special rural development tax, special rural development tax, and special rural development tax, and compensation for delay to the plaintiff under Article 2(1) of the State Compensation Act.

B. Preliminary assertion

1) As to Defendant Nam-ju

The plaintiff acquired profits equivalent to the above money without any legal ground by paying the acquisition tax additionally according to the pre-announcement of taxation at the Namyang-si, and the defendant Nam-si has the obligation to pay the plaintiff 22,556,700 won as unjust enrichment and delay damages.

2) As to Defendant Republic of Korea

Defendant Republic of Korea acquired profits equivalent to the above amount without any legal cause by providing the Plaintiff with additional amount of KRW 2,255,670 for special rural development tax to Defendant Republic of Korea. Defendant Republic of Korea has a duty to pay the Plaintiff 2,255,670 won and damages for delay.

4. Judgment on the main argument

(a) Requirements for establishing State liability;

Article 2(1) of the State Compensation Act provides that the State or local governments shall compensate for any loss inflicted upon any public official by intention or negligence in the course of performing his/her duties when he/she causes such loss to any other person. In light of the contents of the relevant provisions, the public official’s pre-announcement of taxation is clear that it follows the erroneous application of the statutes, and thus, the latter is intentional or negligent in applying the erroneous Acts and subordinate statutes. We examine whether such act of the public official EE is an

(b) Whether performance of duties is related

“The acquisition tax and registration tax are taxes by means of tax return, and in principle, the tax liability is, in principle, determined by the taxpayer’s self-determination and return of tax base and tax amount (see, e.g., Supreme Court Decision 94Da31419, Feb. 28, 1995). The act of sending the notice of pre-announcement of taxation by the public official EE cannot be deemed an administrative disposition subject to appeal litigation and is merely an administrative guidance. However, the public official’s duty, which is the requirement for the claim of compensation as provided by the State Compensation Act, includes not only the power action but also the non-power action such as the administrative guidance, and only the administrative agent is excluded from the activities of the private economic entity (see, e.g., Supreme Court Decision 96Da38971, Jul. 10, 1998).

However, the administrative guidance itself is merely an act of non-poweral fact that does not have any legal effect on the rights and obligations of the people, but merely an act of non-poweral fact that does not have any legal effect on the rights and obligations of the people. Even if there was an erroneous administrative guidance based on the interpretation of statutes, in order to ask the state liability, it should prove that there is an objective proximate causal relationship between the administrative guidance and the damage concerned, and the causal relationship should be determined based on specific matters, the form and content of the administrative guidance, and the actual condition of the exercise thereof. Specifically, if the administrative guidance is not complied with, it can be deemed that there is a proximate causal relationship between the administrative guidance and the damage concerned, in case where the regulatory disposition authority under the system is supported

In this case, according to the evidence No. 3, the issue of whether there is a proximate causal relation between the act of the public official EE and the plaintiff's damage, the notice of taxation, such as acquisition tax, etc. under the name of the Namyang market prepared by the public official EE, does not include any disadvantage that may occur if the person subject to the administrative guidance is not complied with, and rather, if there is an objection in the notice, the Governor of the Gyeonggi-do may request the review of the legality before taxation within 30 days from the date of receipt of the notice under the Local Tax Act and the Enforcement Rule of the Local Tax Act. It can be recognized that the form of the charter of the right to tax payment and the request for review of the legality before the tax are attached. In addition, there is no assertion and evidence on the concern of any disadvantage provided when the plaintiff does not comply with the administrative guidance of the public official EE, and since acquisition tax and registration tax are taxes in a way of return and payment, it is a principle that the taxpayer voluntarily reports the tax base and tax amount and takes responsibility accordingly, it cannot be deemed that there is a substantial relation between the act of the public official EE

D. Sub-determination

The plaintiff's primary claim is without merit.

5. Judgment on the conjunctive assertion

A. As to the defendant Nam-ju

Article 6 (2) of the former Local Tax Act (amended by Act No. 9422 of Feb. 6, 2009) provides that acquisition tax and registration tax shall be Do, and Article 53 of the same Act provides that "Si/Gun shall collect taxes within the Si/Gun and pay them to Do." Thus, Si/Gun's voluntary payment of acquisition tax is merely a Do's administrative affairs, and even if Si/Gun has received a return of acquisition tax, it is merely a Do's administrative affairs and it is not a Si/Gun (see, e.g., Supreme Court Decision 97Da8427, Nov. 11, 1997). Thus, even if EEE, which belongs to the defendant Nam-si, paid acquisition tax to the plaintiff after giving notice of prior notice of taxation, it shall be deemed that the person who gains profits from acquisition is not the city of Nam-do, but the plaintiff's request for return of unjust enrichment to the defendant Nam-ju without any justifiable reason.

B. As to Defendant Republic of Korea

According to the above relevant provisions, acquisition tax on farmland and forests acquired for the purpose of direct cultivation shall not be imposed with special rural development tax. The fact that the actual status on the farmland ledger of each land of this case as farmland is written as orchard, which is farmland, is the same as the above-mentioned facts. Thus, even though there is no legal relationship or factual basis which is subject to taxation, the taxation imposed against the plaintiff shall be deemed as null and void as it is significant and obvious, and as long as the taxation disposition becomes null and void, the circumstance that the disposition of acquisition tax was not revoked does not change the conclusion.

Therefore, Defendant Republic of Korea is obligated to pay 2,255,670 won of special rural development tax and 2,255,670 won from January 1, 2010 to January 13, 2015, which is the day following the day when the Plaintiff paid the special rural development tax, with 5% per annum under the Civil Act 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.

C. Sub-decision

The plaintiff's conjunctive claim against the defendant Nam-ju is without merit, but the conjunctive claim against the defendant's Republic of Korea is with merit.

6. Conclusion

Therefore, the plaintiff's primary claim and the conjunctive claim against the defendant Nam-ju are dismissed as it is without merit, and the conjunctive claim against the defendant Republic of Korea is justified, and it is so decided as per Disposition.

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