[1] Whether it is necessary to link the establishment of a branch office and the real estate registration with the establishment of a large city where the registration tax is levied heavy (affirmative)

[2] The time when the tax liability for heavy registration tax becomes effective

[3] The case reversing the original judgment that applied the previous provision without applying the provision on obligation to pay voluntary declarations newly established at the time when the liability to pay heavy registration tax becomes effective

[1] Article 138 (1) 3 of the Local Tax Act provides that registration tax shall be levied on real estate following the establishment of a juristic person in a large city and the establishment of a branch office or a branch office in a large city and the relocation of a branch office or a branch office in a large city. Article 102 (2) of the Enforcement Decree of the Local Tax Act provides that registration of real estate following the establishment of a juristic person and the establishment of a branch office or a branch office in a large city and the relocation of a branch office or a branch office in a juristic person into a main office, a principal office, or a branch office in a large city means all real estate acquired by the juristic person or a branch office in question before its establishment, establishment, or transfer. The real estate registration in this context refers to the registration of real estate acquired before its establishment, establishment, or transfer. Thus, even if the whole real estate must be used for business of the juristic person or its main office or branch office, etc., or it does not include the real estate acquired at the time of its establishment, relocation, etc. without connection with its establishment or transfer.

[2] The taxation requirements for the registration tax imposed on the real estate registration for the establishment of a branch office in a large city are two items. Therefore, even if the real estate registration was completed first in the large city, the taxation requirements for the registration tax imposed on the real estate for the establishment of a branch office in the large city are satisfied, and the tax liability for the excessive registration tax is established.

[3] The case reversing the judgment of the court below that the local tax law does not have a provision on the obligation to voluntarily report and pay the registration tax imposed when the tax liability becomes effective at the time of the establishment of the tax liability, and Article 150-2 (2) of the Local Tax Act, which was enacted or amended by Act No. 4794 of Dec. 22, 1994 and enforced as of January 1, 1995, imposes the obligation to voluntarily report and pay the tax, and Article 151 imposes the penalty tax on the real estate subject to heavy registration tax, on the grounds that the date of establishing the place of business subject to heavy registration tax on January 20, 1995, after the amendment and enforcement of the above Act, is the establishment of the place of business, and thus, the former Act does not have a provision on the obligation to voluntarily report and pay the registration tax imposed when the place of business is installed after the establishment of the place of business.

[1] Article 138 (1) 3 of the Local Tax Act, Article 102 (2) of the Enforcement Decree of the Local Tax Act / [2] Article 138 (1) 3 of the Local Tax Act / [3] Articles 138 (1) 3, 150-2 (2), and 151 of the Local Tax Act

[1] Supreme Court Decision 87Nu556 delivered on January 31, 1989 (Gong1989, 361), 92Nu15611, 15628 delivered on July 16, 1993 (Gong1993Ha, 2324), Supreme Court Decision 92Nu15796 delivered on June 14, 1994 (Gong1994Ha, 1985), 94Nu11804 delivered on April 28, 1995 / [2] Supreme Court Decision 91Nu10619 delivered on May 12, 1992 (Gong192, 1911)

Oral Trade Co., Ltd.

The head of Seodaemun-gu Seoul Metropolitan Government

Seoul High Court Decision 96Gu18061 delivered on May 16, 1997

The judgment below is reversed and the case is remanded to Seoul High Court.

1. The plaintiff's grounds of appeal are examined.

According to the reasoning of the judgment below, the court below acknowledged, based on the quoted evidence, that the plaintiff purchased the real estate of this case on August 10, 1994 and registered the ownership transfer on September 23, 199 of the same year, registered the business with the location of the real estate of this case as the location of the place of business on January 16, 1995, and on January 20, 200, the "New Drum store" was established on the part of 1st 33.26 square meters of the building of this case among the real estate of this case, and explained that the establishment of Gap evidence 3-1, 2, 4-1, 2, 5-1, 5-1, 5-2 and testimony of witness 1 did not interfere with the above fact-finding, and otherwise, since the sales store established by the plaintiff as part of the real estate of this case is equipped with human and physical facilities and is subject to the "registration under Article 138 (1) 2, 30-1, 2, 2, and 5-2 of the Enforcement Decree" of the Act.

Article 138 (1) 3 of the Act provides that registration tax shall be levied on real estate following the establishment of a juristic person and the establishment of a branch or sub-branch in a large city and the relocation of a branch or sub-branch into a large city. Article 102 (2) of the Enforcement Decree of the Act provides that registration of real estate following the establishment of a branch or sub-branch and the establishment of a branch or sub-branch in a large city and the relocation of a branch or sub-branch into a large city refers to all the real estate acquired before the establishment, establishment, and relocation of a branch or sub-branch in the relevant juristic person or sub-branch. Since all of the real estate registration in this context refers to the registration of real estate acquired before the relevant juristic person or sub-branch is established, established, and transferred, the entire real estate must be used for business of the relevant juristic person or sub-branch in a large city, or the entire real estate at the time of its acquisition shall not be included in the establishment, establishment, relocation and acquisition by the head office or sub-branch in the scope of 196Nu 196.4.

However, according to the plaintiff's assertion, the plaintiff acquired the entire real estate of this case for the purpose of supporting the real estate rental business, which is a corporation's business, and entered into a lease contract with the non-party Gyeong Food Co., Ltd., but the contract was changed to lease only the remaining part except the part among the non-party's non-party who occupied 33.26 square meters of building 1 floor, and the plaintiff used it for a temporary sales outlet until the lease of the above part. Thus, the transfer registration of ownership on the real estate of this case did not meet the requirements for heavy registration tax, and each of the above evidence rejected by the court below because the court below did not interfere with the fact-finding, which was submitted to prove that the existence of evidence does not interfere with the fact-finding. The purport of reserving the value determination on the evidence is that even if it was intended to prove by the evidence, it would not affect the conclusion of the judgment, and thus, the court below erred in the misapprehension of the legal principles as to the establishment of the real estate of this case.

In addition, as long as the argument in the grounds of appeal disputing this point is well-grounded, the part against the plaintiff in the judgment of the court below is not reversed without examining the propriety of the remaining grounds of appeal.

2. The defendant's grounds of appeal are examined.

According to the reasoning of the judgment below, when the requirements for heavy registration tax are met by establishing a branch office in a large city after the registration of the real estate in question, the liability to pay the registration tax becomes effective only if the branch office, etc. is established, and the liability to pay the penalty tax is established in order to impose the heavy registration tax. Article 124 of the Act provides that "where a person liable to pay the registration tax registers or registers matters concerning the acquisition, transfer, alteration or extinction of property rights and other rights in the public register, the registration tax shall be imposed on the person who has received such registration," and Article 130 (2) of the Act provides that "the tax base under paragraph (1) shall be reported by the person who has filed the registration, under the conditions as prescribed by the Municipal Ordinance," and Article 138 (1) of the Act provides that "if a person liable to pay the registration tax falls under any of the following subparagraphs after the ordinary collection is not made, the amount of the registration tax and the registration tax calculated by the voluntary declaration as prescribed in Articles 131 and 137 shall be considered to be unlawful by the taxpayer."

The tax liability for the registration tax imposed on the real estate establishment of a branch in a large city is two main requirements for the registration of real estate in a large city and for the establishment of a branch office in a large city. Therefore, even if the real estate registration was first made in a large city, the tax liability for the registration tax imposed only when the branch office is established (see Supreme Court Decision 91Nu10619 delivered on May 12, 1992), and the tax imposition should be governed by the provisions of the law in force at the time of the establishment of the tax liability, and the law at the time of the establishment of the tax liability among the Acts and subordinate statutes before and after the amendment shall be applied unless there are special circumstances.

However, the previous Act does not provide for liability for voluntary declaration when a branch office is established after the registration of real estate, and the Supreme Court precedents cited by the court below (Supreme Court Decision 91Nu10619 Decided May 12, 1992) also points out this issue, but Article 150-2 (2) of the Act, which was newly enacted or amended by Act No. 4794 on December 22, 1994 and effective January 1, 1995, provides for the exemption of the Plaintiff from the liability for voluntary declaration and payment of the registration tax under Article 132-2 (3) or 138, since the object of taxation of the registration tax is subject to the imposition of the registration tax under Article 132-2 (3) or 138, the court below erred by failing to pay the tax amount calculated by applying the tax rate under Article 132-2 (3) or 138 within 30 days from the date prescribed by Presidential Decree, or by failing to pay the tax amount by self-return and payment of the registration tax under Article 130-14."

Therefore, the appeal by the plaintiff and the defendant is with merit and all of the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all

Justices Seo Sung-sung (Presiding Justice)