(영문) 대구고등법원 2021.4.23. 선고 2020누3688 판결

The judgment of the first instance is revoked. The defendant will refund the Plaintiff KRW 29,659,920 (tax number B and C), including acquisition tax paid by the plaintiff around September 2016.

Reasons

1. Basic facts

A. D obtained a construction permit from the Defendant on July 15, 2014 to newly build a multi-household house of 14 households on the land of Busan-si (hereinafter referred to as “multi-household house of this case”) on the land of Busan-si, and completed the report on the commencement of the construction of the instant multi-unit house to the Defendant on September 24, 2014.

B. On February 12, 2015, the Plaintiff completed a report on the change of the owner of the instant collective housing from D to the Plaintiff and completed the instant collective housing construction report, and obtained approval for the use of the instant collective housing from the Defendant on May 30, 2016.

C. On September 8, 2016, the Defendant imposed KRW 29,659,920 (hereinafter “instant acquisition tax”) on the Plaintiff as acquisition tax, etc. on the ground of the acquisition of the instant collective housing, and the Plaintiff paid the said acquisition tax on November 18, 2016.

D. The Plaintiff asserted that acquisition tax on the instant multi-family housing should be exempted pursuant to Article 33(1) of the Restriction of Special Local Taxation Act, and filed an application for rectification of acquisition tax and application for refund.

E. On March 25, 2020, the Defendant rejected the Plaintiff’s above application for the following reasons.

- Local tax reduction or exemption should be applied in accordance with the laws and regulations at the time tax liability is established under the principle of no taxation without the law, unless the former provisions expressly stipulate that the requirements for taxation based on the act of the cause are met for a future limited period (see, e.g., Supreme Court Decision 2008Du5773, Nov. 11, 2010). - The interpretation of the tax laws and regulations shall be construed as the legal text, barring any special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds, and in particular, it accords with the principle of fair taxation (see, e.g., Supreme Court Decisions 2008Du573, Apr. 24, 2003; 2002Du9537, Apr. 24, 2003).

With the completion of local tax reduction and exemption support, it would be difficult to exempt the acquisition tax, etc. of this case by applying only the supplementary provisions of "general transitional measures" without specifically stipulating the provisions of local tax reduction and exemption.

【Non-contentious facts, Gap’s evidence Nos. 1, 3, 5, 6, 8, Eul’s evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The plaintiff's assertion

Although the Plaintiff paid acquisition tax on the instant multi-family housing, it became aware that acquisition tax was exempted pursuant to Article 33(1) of the Restriction of Special Local Taxation Act, and thereafter, the Plaintiff sought refund of KRW 29,659,920, including acquisition tax paid by the Defendant, who is an administrative agency.

B. Determination

The so-called “performance of an obligation” that orders an administrative agency to actively engage in a certain act is not allowed (see, e.g., Supreme Court Decisions 87Nu868, Sept. 12, 1989; 91Nu4126, Feb. 11, 1992). The content of the Plaintiff’s claim is clear that the Plaintiff’s claim against the Defendant, an administrative agency, seeking the refund of acquisition tax paid by the Plaintiff against the Defendant, who is an administrative agency. This constitutes a lawsuit seeking performance of an obligation, and thus, the instant

3. Whether any ground for refunding acquisition tax exists;

Even if the plaintiff's lawsuit of this case is selected by the defendant to seek revocation of the return disposition of this case on March 25, 2020, it is determined that there is no ground to refund the acquisition tax of this case for the following reasons. Thus, this part of the plaintiff's assertion is without merit (it is not possible to receive the acquisition tax refund for the same reason even if the plaintiff seeks to refund the acquisition tax of this case against Gyeongsan-si, which received the acquisition tax of this case through the modification of lawsuit, as a party litigation under the Administrative Litigation Act)

(a) Whether it satisfies the requirements for exemption under Article 33 (1) of the Restriction of Special Local Taxation Act;

1) Article 33(1) of the Restriction of Special Local Taxation Act (amended by Act No. 12175, Jan. 1, 2014; hereinafter the same shall apply in this Article) provides that "where a housing construction business operator prescribed by Presidential Decree sells multi-family housing (including incidental facilities and welfare facilities of the relevant multi-family housing, but excluding welfare facilities for the sale or lease thereof; hereinafter the same shall apply in this Article) with an exclusive area of 60 square meters or less, and multi-family housing (excluding land annexed to the relevant multi-family housing) with an exclusive area of 60 square meters or less built by the owner of the relevant multi-family housing for the purpose of selling multi-family housing in lots, and is converted for rent under Article 31 for reasons, such multi-family housing shall be exempted from acquisition tax until December 31, 2014, and Article 3 of the Addenda of the same Act (Act No. 12175, Jan. 1, 2014) provides that "this Act shall apply from the first taxable period after this Act enters into force to 20.14.

2) According to Article 34(1)1 of the Framework Act on Local Taxes, an obligation to pay acquisition tax is established at the time of acquisition of taxable objects, and the main text of Article 20(6) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 28627, Feb. 9, 2018) provides that “If a building is constructed or repaired to acquire it, the date on which a written approval for use is issued or the date on which it is actually used is deemed the

3) The date of approval for use of the instant apartment is as seen earlier on May 30, 2016. There is no evidence to acknowledge that the date of actual use of the instant apartment is more rapid than May 30, 2016. Therefore, the Plaintiff is deemed to have acquired the instant apartment house on May 30, 2016, which is the date of approval for use. In such cases, the Plaintiff is liable to pay acquisition tax on the instant apartment.

4) The Plaintiff asserts that Article 33(1) of the Restriction of Special Local Taxation Act applies to the instant case on or before December 31, 2014, because there was an act of cause, such as commencement and sale announcement, closely related to meeting the taxation requirements, which is the sunset time limit. However, there is no provision that such act of cause exists, as alleged by the Plaintiff under the Act, such as the Restriction of Special Local Taxation Act, and this is contrary to the interpretation of the establishment date of acquisition tax liability as seen earlier, and thus, it does not exempt the Plaintiff from acquisition tax pursuant to the said

5) Ultimately, acquisition tax exemption under Article 33(1) of the Restriction of Special Local Taxation Act cannot be granted to multi-family housing of which liability to pay acquisition tax, which is subject to exemption, was not established until December 31, 2014.

B. Whether the principle of protecting taxpayer confidence in the extension of the sunset period is violated

The Plaintiff asserts that Article 14 of the Addenda of the Restriction of Special Local Taxation Act (Act No. 12955, Dec. 31, 2014) provides that "the local tax imposed, exempted, or to be imposed, or to be reduced or exempted pursuant to the previous provisions before this Act enters into force shall be governed by the previous provisions," and that since the sunset period stipulated in the said provision has been extended to 20 years, the Plaintiff, even after the lapse of December 31, 2014, has no choice but to believe that it will be extended again, from the perspective of protecting taxpayer's trust, should be exempted from acquisition tax on the instant multi-family housing pursuant to Article 33(1) of the Restriction of Special Local Taxation Act.

However, in light of the relevant statutes and the facts acknowledged as seen earlier, it is insufficient to recognize that the Plaintiff formed a legitimate trust that the Plaintiff would be exempted from acquisition tax on the instant multi-family housing based on Article 14 of the Addenda to the Restriction of Special Local Taxation Act, or that the said statutes were modified disadvantageous to taxpayers, and that the instant disposition violated the principle of protecting taxpayers’ trust on the extension of the time limit for sunset. Therefore, the Plaintiff’s aforementioned assertion is without merit.

① Article 33(1) of the Restriction of Special Local Taxation Act explicitly states that the time limit for sunset to which the special exception to acquisition tax exemption applies is a temporary measure on December 31, 2014. Therefore, it seems that it was sufficiently foreseeable that the special exception to acquisition tax exemption will be terminated by a plaintiff who succeeded to the position of a project owner from DNA or D, which commenced for the construction of the instant multi-family housing around September 24, 2014, the arrival of the time limit for sunset would not end.

② Even if the period of sunset has been extended for a considerable period through the amendment of the previous Act and subordinate statutes, the legislative intent of which is to regulate special cases of acquisition tax exemption in the form of the current Act in order to re-determine the existence of such special cases and the scope of application, in cases where the legislators protect the simple expectation that the period of sunset will be extended by the amendment of the relevant Act and subordinate statutes in the future, as well as by the amendment of the relevant Act and subordinate statutes, at the end of the period of sunset, in consideration of the changed policy environment and the principle of equity in taxation, etc.

(3) Article 33 (1) of the Restriction of Special Local Taxation Act shall terminate the deadline to which special cases concerning acquisition tax exemption apply.

Without specifying it as 12,31 January 1, 2014, the amendment remains without being amended until now.

④ After such sunset period, the Plaintiff completed the use approval of the instant multi-family housing, May 30, 2016, and paid the instant acquisition tax without any specific objection on November 18, 2016.

4. Conclusion

Thus, the lawsuit of this case shall be dismissed as it is unlawful. Since the judgment of the court of first instance is unfair with a different conclusion, it is so decided as per Disposition by cancelling it and rejecting the lawsuit of this case.