2018Guhap7833 Such revocation of disposition as acquisition tax, etc.

1. A;

2. B

3

Plaintiffs (Law Firm*, Attorney Lee Gyeong-hoon, Counsel for the plaintiff-appellant)

Yangsan City

Attorneys Kim Jong-chul et al.

September 5, 2019

October 17, 2019

1. On March 20, 2018, the Defendant’s rejection of a claim for refund or rectification of KRW 9,40,00,00,00, and education tax, KRW 940,00, and KRW 470, and KRW 00, the special tax for agriculture and fishing villages, shall be revoked.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Details of the disposition;

A. On November 15, 2017, the Plaintiffs entered into a sales contract with the content that the Plaintiffs would jointly purchase KRW 235,00,00,00 from D, E, F, and G (hereinafter referred to as “D, etc.”) 235,00,000 (hereinafter referred to as “the sales contract in this case”).

B. On December 18, 2017, the Plaintiffs voluntarily reported acquisition tax of KRW 9,40,00,00, education tax of KRW 940,00, and special rural development tax of KRW 470,00, and KRW 10,810,00 (hereinafter “acquisition tax, etc.”) to the Defendant regarding the acquisition of the instant real estate on December 19, 201, and paid acquisition tax, etc. on December 19, 2017.

C. On December 19, 2017, the Plaintiffs completed the registration of ownership transfer on the instant real estate due to the instant sales contract.

D. The instant real estate was divided into the instant real estate * Hasan-si Hasan-do * 18 Lisan-do 18- 1397 square meters on July 10, 2017 ** 5 Li 5 - 16 large 1392 square meters on December 14, 2017, which was after the instant sales contract was divided into the instant real estate * 5 Li 5 - 16 large 597 square meters and the instant real estate. Accordingly, the Plaintiffs and D et al. were removed from the instant real estate among the land before the instant sales contract was divided into the instant real estate and the instant real estate * 5 Li 5 - 16 large 597 square meters on July 10, 201, and the registration of transfer of ownership was completed on July 29, 2018.

E. On February 5, 2018, D, etc. completed the registration of ownership transfer with respect to the Plaintiffs’ trading on the same day, as above** 5 per annum 5-16 per annum 597 square meters, respectively. On February 5, 2018, the Plaintiffs paid to the Defendant KRW 9,890,000 in total, including acquisition tax 8,60, and KRW 00 in relation to the acquisition of the said real estate.

F. On February 13, 2018, the Plaintiffs filed a claim for correction with the Defendant for refund of the acquisition tax, etc. paid in relation to the acquisition of the instant real estate. However, on March 20, 2018, the Defendant rendered a disposition to refuse correction on the ground that there was a tax liability unless the judgment rendered a judgment invalidating the cause of the registration was rendered (hereinafter “instant disposition”).

G. The Plaintiffs appealed and filed an objection with the Superior-do Governor on April 12, 2018, but the Gyeongnam-do Governor dismissed the objection on June 14, 2018. The Plaintiffs filed an appeal with the Tax Tribunal on August 30, 2018, but the Tax Tribunal dismissed the appeal on November 6, 2018.

H. On April 24, 2018, the Plaintiffs filed a lawsuit against D, etc. seeking confirmation of invalidity of the instant purchase and sale contract by Busan District Court 2018Gudan31049. On September 17, 2018, the said court confirmed on September 17, 2018 that “D, etc. confirmed that the instant transaction contract between the Plaintiffs and D, etc. was null and void.” The said decision became final and conclusive on October 12, 2018, and became final and conclusive (hereinafter “instant reconciliation recommendation decision”).

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 1 through 10, Eul evidence No. 1 (including a lot number if there are several numbers)

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The plaintiffs purchased the real estate of this case, which was divided into the land before subdivision due to mistake in the process of purchasing Yangsan-si,* 5- 16- 597 square meters, and paid acquisition tax, etc., but the plaintiffs revoked the sales contract of this case with D, etc. on January 29, 2018 and cancelled the contract of this case on January 29, 2018 due to mistake in applying for the registration of transfer of ownership in the names of the plaintiffs as to the non-dong mountain, and the sales contract of this case, which caused the plaintiff to acquire the real estate of this case, became null and void due to the settlement recommendation of this case. Accordingly, the defendant's refusal to refund acquisition tax, etc. to the plaintiffs pursuant to Article 50 (2) 1 and 3 of the Framework Act on Local Taxes and Article 30 (2) 2 of the Enforcement Decree of the Framework Act on Local Taxes, is unlawful, and thus the disposition of this case should be revoked.

(b) Relevant statutes;

Attached Form 3 is as shown in the "relevant Acts and subordinate statutes".

C. Determination

Since acquisition tax is a kind of distribution tax imposed on the basis of the fact that it is the transfer of the original goods, and it does not impose profits that may be gained by the purchaser from using, earning, or disposing of the goods, the actual acquisition per se regardless of whether the purchaser acquires a right to file a lawsuit with substantial complete contents. When a purchaser concludes a sales contract on real estate and pays the purchase price in full, the actual acquisition becomes effective as a matter of course, and its tax claim is established. Even if a sales contract is cancelled by agreement and the real estate is returned, it cannot affect the exercise of the already established tax claim (see Supreme Court Decisions 98Du1428, Dec. 8, 1998; 2013Du278, Jun. 28, 2013; 2013Du2788, Jun. 28, 2013).

In light of the above legal principles, where the sales contract of this case is null and void or cancelled, it cannot be deemed that actual acquisition is different from the acquisition tax from the beginning, unless there are special circumstances such as the actual quality of the contract constitutes cancellation by agreement. In full view of the aforementioned evidence and the following facts, the sales contract of this case was confirmed as null and void due to the confirmation of the settlement recommendation decision of this case. Thus, even if the plaintiffs completed the registration of ownership transfer of the real estate pursuant to the sales contract of this case, it cannot be deemed an actual acquisition subject to acquisition tax, even if the plaintiffs completed the registration of ownership transfer, and thus, the defendant must correct the details of refund of acquisition tax, etc. paid on the premise that the plaintiffs actually acquired the real estate of this case, and the disposition of this case based on a different premise is unlawful.

① Considering the fact that the decision of recommending reconciliation pursuant to Articles 220 and 231 of the Civil Procedure Act has the same effect as the final and conclusive judgment, and that the reconciliation and other acts having the same effect as the judgment are all reported as the grounds for demanding correction, as long as the decision of recommending reconciliation in this case becomes final and conclusive that the sales contract in this case is null and void, it shall be deemed as identical to the case where the judgment of confirming the invalidity of the sales contract in this case becomes final and conclusive. Accordingly, as the decision of recommending reconciliation in this case becomes final and conclusive, the sales contract in this case was null and void. Therefore, it cannot be deemed that the actual acquisition of the real estate in this case, which serves as the basis for the disposition in this case

② D, etc., around September 29, 2017, before the conclusion of the instant sales contract, concluded a sales contract for KRW 235,00,00 with respect to the purchase price of KRW 649 square meters ( KRW 597 square meters, road 52 square meters) among the land before subdivisions, around September 29, 201, the Plaintiff A and B, their mother, entered into the sales contract for KRW 235,00,00. The Plaintiffs appears to have been aware of the fact that the area of KRW 5-16 large-scale 597 square meters was exactly consistent with the size of the land among the land they were trying to purchase from D, etc., for the reason that D’s purchase and sale of the instant real property was cancelled for the reason that D’s sale and purchase registration was cancelled for the reason that D’s sale and purchase registration was cancelled for the reason that D’s sale and purchase registration for KRW 17,000,000,000.

③ It is recognized that D prepared a confirmation that the instant sales contract had been rescinded by agreement with the Plaintiffs (Evidence A No. 3 and 9). However, the said confirmation may not be deemed as a cancellation of agreement in its substance, with the confirmation that the instant sales contract was null and void, provided that the instant sales contract was caused by mistake in the parcel number of water for the purpose of sale, there is no material to deem that the instant sales contract was concluded by agreement due to nonperformance, such as the Plaintiff’s payment of the purchase price, or due to changes in the Plaintiffs or D, etc., and as seen earlier, the Plaintiffs could have been revoked pursuant to Article 109 of the Civil Act on the ground that the instant sales contract was erroneous.

3. Conclusion

Therefore, the plaintiffs' claim of this case is reasonable, and it is so decided as per Disposition.

Judges Gangwon-do;

Judges Lee Jae-py

Judge Lee Jong-soo

1) Eul evidence 1-2 (A statement of the resolution to be reported)

[Attachment]

Relevant statutes

▣ 지방세기본법

(1) In any of the following cases, a person who has filed a tax base return under this Act or local tax-related Acts by the statutory deadline for filing a tax return may request the head of a local government to determine or correct the tax base and the amount of local tax (where a determination or correction is made pursuant to the Local Tax Act, referring to the tax base, the amount of tax, etc. after such determination or correction is made) first and later within five years (where he/she is notified of such determination or correction, referring to within 90 days (limited to within five years after the statutory deadline for filing a tax return expires) from the date he/she becomes aware of such determination or correction (where he/she is notified of such determination or correction, referring to the date he/she is notified of such determination or correction) after the statutory deadline for filing the tax return expires:

1. Where the tax base and amount of tax recorded in the tax base return (where any determination or correction is made pursuant to the Local Tax Act, referring to the tax base and amount of tax after such determination or correction is made) exceed those to be reported pursuant to the Local Tax Act;

2. Where the amount of refundable tax recorded in the tax base return (referring to the amount of refundable tax after determination or correction where such determination or correction is made pursuant to the Local Tax Act) is less than the amount of refundable tax to be reported pursuant to the Local Tax Act.

(2) Where any of the following grounds arises, a person who has filed a tax base return by the statutory deadline for return, or who has the tax base and amount of local taxes determined, may request the determination or correction within three months from the date he/she becomes aware that such ground has occurred, even within the period referred to in paragraph (1):

1. Where the transaction, act, etc. which forms the basis of calculation of the tax base and the amount of tax in the initial return, determination or correction becomes final and conclusive as different by a final judgment (including any reconciliation or other act having the same effect as the judgment) in the lawsuit relevant thereto;

3. Where grounds prescribed by Presidential Decree which are similar to those referred to in subparagraphs 1 and 2 arise after the statutory deadline for return of the relevant local tax expires.

Enforcement Decree of the Framework Act on Local Taxes

"Grounds prescribed by Presidential Decree" in Article 50 (2) 3 of the Act means any of the following cases:

2. When a contract related to the validity of a transaction, act, etc. which served as the basis for calculating the tax base and the amount of tax is terminated or cancelled due to unavoidable reasons that have occurred after the formation of the relevant contract, at the time of the initial return, determination or correction;