Two disposition imposing transfer income tax on one real estate and unjust profits;

Where capital gains tax has been imposed on the first transfer of any real estate, but the first transfer of the real estate has been cancelled and the second transfer of the real estate has been again imposed on the third transfer of the real estate, the State shall return the amount of tax paid by the disposition imposing capital gains tax on the first transfer of the real estate to the taxpayer as unjust gains.

Article 741 of the Civil Act

Kim Dong-sub

Korea

Seoul High Court Decision 9Da40421 delivered on February 3, 1993

1. Of the lower judgment, the part against the Defendant in excess of the amount ordered to pay is revoked, and the Plaintiff’s claim corresponding to the revoked part is dismissed.

2. The defendant shall pay to the plaintiff the amount of 228,259,192 won and the amount of 5% per annum from January 16, 1992 to August 4, 1993, and 25% per annum from the next day to the date of full payment.

3. The defendant's remaining appeal is dismissed.

4. The total costs of the lawsuit shall be borne by the defendant.

The defendant shall pay to the plaintiff the amount of KRW 228,259,192 and KRW 79,419,731 of these amounts, from November 20, 1987 to KRW 79,419,731 of these amounts, from December 20 of the same year to KRW 69,419,730, from January 19, 198 to the service date of the copy of each complaint of this case, the amount of KRW 5 percent per annum from the following day to the full payment date, and the amount of KRW 25 percent per annum.

The judgment of the court below shall be revoked.

The plaintiff's claim is dismissed.

1 Basic facts

The following facts are not disputed between the parties, or are acknowledged by Gap evidence Nos. 1, 2-1 through 3, 3, 4-5, 1, 2, 6, 7, 8, 9, 2-1, 2, and 3, and 2-1, 2, and 3, and 2-1, 2, and 3, respectively, and evidence Nos. 1 through 3, 2-1, 3, and evidence Nos. 4 and 5.

A. On June 25, 1986, the Plaintiff entered into a sales contract with the non-party company, with the size of 50 to 2,250,007 square meters in Seoul Jongno-gu, Jongno-gu, Seoul (hereinafter referred to as the “non-party company”) and the size of the building on its ground, which is owned by the Plaintiff, for KRW 2,250,00,000 in total, and with the size of 1925.27 square meters in total, the Plaintiff sold the above site and building to the non-party company for KRW 2,250,00,000 in total, and the price shall be set off against the amount of the Plaintiff’

B. On March 16, 1987, the director of the Gangseo District Tax Office under the defendant's jurisdiction imposed a disposition of KRW 190,215,94 as transfer income tax on the transfer margin from the purchase and sale of the real estate of this case with the plaintiff and the non-party company, and KRW 228,259,19,192 as transfer income tax on the defense tax (hereinafter "first imposition disposition"). The plaintiff notified of the imposition of KRW 79,419,731 as of November 20, 199, and KRW 79,419,731 as of December 20, 198, and KRW 69,419,730 as of December 19, 198.

C. However, after the above sales contract, the plaintiff did not complete the registration of transfer of ownership for the real estate of this case for the non-party company, and the plaintiff had different opinions on the implementation of the contract, the plaintiff cancelled the above sales contract with the non-party company on September 30, 1987

D. After that, the Plaintiff sold the instant real estate to the Nonparty Tourism Development Co., Ltd. and completed the registration of ownership transfer on August 28, 1990. Accordingly, the director of the tax office having jurisdiction over the Defendant issued a disposition imposing capital gains tax on June 10, 1982 (the date on which the Plaintiff acquired the said land from the return of the non-party, the former owner), and the portion of the building, on November 24, 1983 (the date on which the registration of ownership preservation is completed by the Plaintiff’s new construction of the said building), calculated capital gains on August 28, 1990 based on the standard market price, and calculated capital gains on the basis of the standard market price. The Plaintiff imposed capital gains tax on the aggregate of the capital gains on the real estate transferred separately from the real estate transferred to the non-party and the total of the capital gains on the forest area of 6408,657 square meters, and imposition of capital gains tax on the total sum of the capital gains calculated on June 16, 1992.

2. Whether the first imposition disposition is appropriate; and

A. Transfer income tax is imposed on the premise that the transfer of assets and the income accrued therefrom accrue. If the sales contract for real estate was rescinded between the seller and the buyer, the effect of the sales contract is lost, and thus the transfer of assets, which is a requirement for taxation of transfer income, cannot be deemed to exist (see Supreme Court Decision 92Nu944, Dec. 22, 1992; 90Nu1991, Jul. 13, 1990).

Therefore, in such a case, a disposition imposing capital gains tax on the premise that the seller has income from the transfer of the real estate is illegal, and even in the case of cancellation by agreement after the issuance of the disposition imposing capital gains tax, since the economic condition that the buyer acquired the ownership of the real estate has already been finally extinguished, the disposition imposing capital gains tax prior to the cancellation of the disposition imposing capital gains tax has already become invalid.

B. If so, as recognized above, as long as the above sales contract between the plaintiff and the non-party company has been rescinded, the first imposition disposition, based on the premise that capital gains under the above sales contract exists, shall be deemed to have lost its validity.

3. Judgment on the argument

A. Accordingly, the Plaintiff asserted that the first imposition disposition is null and void as a matter of course, and sought return of the said transfer income tax and defense tax paid by the Plaintiff in accordance with the said imposition disposition as unjust enrichment against the Defendant.

However, even if illegal taxation is made, it is valid as a result of recognizing the fairness of administrative act as a result of recognizing the fairness of administrative act, so long as the disposition is not a case of invalidation as a matter of course due to inherent inherent and apparent defects, such disposition shall not be void as a matter of course. As such, with respect to a disposition of invalidation, it is not a matter of course, but a matter of course, as prescribed by the Framework Act on National Taxes, to seek revocation by administrative litigation, and as a result, the validity of the disposition shall be denied only when the illegality

However, in the case of this case, the first imposition disposition was made on June 25, 1986 by the plaintiff selling the real estate of this case to the non-party company, and its payment was set off against the debt of borrowed money to be repaid to the non-party company and was made on March 16, 1987, which was after the completion of the settlement of the purchase price. After that, the plaintiff terminated the above sales contract, and there is no evidence to support that there was any illegality and illegality in the above disposition at the time of the above imposition, as long as there was no evidence to support that there was any illegality and illegality in the above disposition at the time of the above imposition, the above imposition disposition cannot be deemed to be null and void as it was only after the plaintiff cancelled the above sales

B. However, under the current system that requires the tax authority to determine or correct taxable income and amount of tax, in cases where it is deemed evident that a tax assessment already made has not been made even though there was no income due to the extinguishment of the taxable cause, the tax authority must, as a matter of course, take any corrective measures against it (if the tax assessment was revoked, the tax amount corresponding to the portion of the taxation is returned to the taxpayer after the revocation of the taxation disposition, the collection of the tax amount, etc.), and such corrective measures are expected and demanded by law.

If it is objectively clear that there is no reason for taxation, and there is no reasonable need for the tax authority to withhold such recognition determination, and if the tax authority does not take corrective action, it would be remarkably unfair, and it would be contrary to justice and the principle of fairness to the taxpayer. In this case, even if there is no corrective action by the tax authority, the tax authority or the state may not claim the validity of the taxation for the taxpayer. Therefore, it is reasonable to interpret that the tax collection cannot be made based on the above taxation disposition, as well as the collection of the tax must be returned to the payer as the benefit with the legal cause (in this case, even if there is no possibility of dispute about the taxation itself, the legality of the taxation disposition can be deliberated and decided as a preliminary question of other litigation).

C. Therefore, as recognized above, the plaintiff's transfer of the real estate of this case to the non-party company on June 25, 1986 was cancelled on March 16, 1987 after the Director of the Gangwon-gu Office imposed the first imposition on the transfer contract and sold the real estate of this case to the non-party tourism development company on August 28, 1990. The director of the Gwangju-gu Tax Office again imposed the second imposition on the non-party tourism development company on January 16, 1992. The second imposition disposition is premised on the absence of the above transfer contract between the plaintiff and the non-party company. The second imposition disposition is based on the premise that the transfer contract between the plaintiff and the non-party company did not exist. In calculating the transfer gains, the land of this case is the date the plaintiff acquired the transfer from the non-party uniforms, the building portion is considered to be the date the plaintiff completed the registration of ownership transfer by constructing the above building, and the transfer time is obviously inconsistent with each other, and thus it is not compatible with the above two logic.

The first imposition disposition by the second imposition disposition is no longer effective.

In addition, in full view of the above evidence Nos. 8 and 9, when the plaintiff paid the tax pursuant to the first imposition disposition as above and paid the tax pursuant to the second imposition disposition again without being refunded, the plaintiff asserted that the second imposition disposition is unreasonable by filing a lawsuit against the director of the Gwangju District Tax Office for the revocation of the second imposition of capital gains tax (However, in the lawsuit, the plaintiff asserted that the sales contract with the non-party company was rescinded, and basically, pointed out the illegality of the first imposition disposition, and argued that it is reasonable that at least the number of the taxes already paid by the plaintiff based on the first imposition disposition should be deducted, and in any form, it is clearly stated that the plaintiff's tax amount already paid by the first imposition disposition should be corrected only twice by the transfer of assets. The plaintiff and the non-party company's sales contract with the non-party company were lawfully rescinded, and the court rejected the plaintiff's claim through the second imposition disposition under the Framework Act on National Taxes and rejected the plaintiff's claim for the second imposition of capital gains tax.

In full view of the above facts, the first imposition disposition against the plaintiff became objectively clear that the reason for taxation was extinguished as a result of the extinction of the cause for taxation, and there is no reasonable need to withhold the recognition and judgment on the existence of such cause for taxation to the tax authorities under the defendant's jurisdiction. However, even though the first imposition disposition cannot be maintained by the second imposition disposition, the first imposition disposition is not taken directly by the tax authorities for the first imposition disposition, and it is considerably unfair to have the plaintiff bear the payment of taxes based on the first imposition disposition, and it is against the justice and the principle of fairness. Thus, the defendant cannot assert the effect of the first imposition disposition against the plaintiff. Thus, the defendant is obligated to return to the plaintiff the above transfer income tax and the defense tax collected based on the first imposition disposition, as a profit with a legal cause, which is a duty to return to the plaintiff.

4. Conclusion

Therefore, the defendant is deemed to have acquired the above amount without any legal ground from January 16, 1992 (the plaintiff is seeking the payment of interest from the date of payment of taxes in accordance with the above disposition. However, even with all the evidence of this case, it cannot be found that the defendant was aware that the acquisition of the above amount was due to the first disposition before the second disposition is made without legal ground. Thus, it cannot be accepted a claim for payment of interest exceeding the above scope of recognition. Since the defendant's claim for payment of interest exceeding the above scope of recognition is reasonable annually from the day following the date when the judgment below is delivered, and since the remaining portion of the plaintiff's claim for payment is revoked with no legal ground, it is not reasonable to dismiss the plaintiff's claim for payment with interest rate exceeding 5 percent per annum of the Civil Act until the date when the judgment of this case is delivered, and there is no reason to dismiss the plaintiff's claim for payment with interest rate exceeding the remaining portion of the judgment of this case within 25 percent per annum of the judgment of this case.

Judges Don-Jeng (Presiding Judge) Maap Promotion Minimum