[1] The subject of ownership ownership of the newly constructed building by the housing association

[2] The nature of a person liable to pay acquisition tax's reporting act and the standard for determining whether the defect is a ground for invalidation as a matter of course

[3] The case reversing the judgment below ordering the return of the amount equivalent to the acquisition tax on the ground that the act of reporting acquisition tax by the housing association is serious but not obvious

[1] A housing association does not newly construct and sell a building from its own funds, but rather constructs a building fund to be borne by each member in accordance with the process. Thus, even if a building permit and completion inspection have been conducted under the name of an association for the convenience of the construction procedure, the ownership of the building shall be deemed to have been acquired at the original time by the association members, except for the housing portion and welfare facilities sold to the general public other than the association members, barring special circumstances.

[2] Acquisition tax is a tax in the form of tax return, in principle, the tax liability is specifically determined by the taxpayer's act of setting a tax base and amount of tax and by filing a return (limited to the case where the tax office does not file a return from the taxpayer), and its payment is the performance of specific tax liability confirmed by the return, and the local government holds the tax amount paid based on the final tax claim. Thus, unless the taxpayer's act of filing a return is void as a matter of course due to serious and obvious defects, it shall not be deemed as unjust enrichment. Here, as to whether the act of filing a return constitutes void as a matter of course due to grave and obvious defects, the purpose, meaning, function, and legal remedies for the act of filing a return shall be examined as a basis for the act of filing a return, and at the same time, the specific circumstances leading to the act of filing a return shall be determined reasonably

[3] The case reversing the judgment of the court below ordering the return of unjust enrichment equivalent to the amount of acquisition tax paid on the premise that the defect is null and void as a matter of course, on the ground that the housing association did not make a voluntary report or payment of acquisition tax, but it is merely erroneous that it had a duty to pay acquisition tax, despite the absence of such duty to pay tax, and there is no objective circumstance to mislead the housing association as a taxpayer, and it cannot be readily concluded that the defect is serious even if there

[1] Article 44 of the Housing Construction Promotion Act, Articles 187 and 741 of the Civil Act / [2] Article 120 of the Local Tax Act, Article 741 of the Civil Act, Articles 1 and 19 of the Administrative Litigation Act / [3] Article 120 of the Local Tax Act, Article 741 of the Civil Act, Articles 1 and 19 of the Administrative Litigation Act

[1] Supreme Court Decision 94Da47797 decided Jan. 24, 1995 (Gong1994Ha, 2139), Supreme Court Decision 93Nu1839 decided Jun. 24, 1994 (Gong1994Ha, 2139) / [2] Supreme Court Decision 94Da50212 decided Jun. 30, 1995 (Gong1995Ha, 2554), Supreme Court Decision 95Da18185 decided Nov. 28, 1995 (Gong196Sang, 160), Supreme Court Decision 94Da60363 decided Dec. 5, 199 (Gong196, 196Sang, 192) / [3] Supreme Court Decision 194Da19839 decided Apr. 16, 195 (Gong1995Da193995 decided Apr. 319, 1995]

Seoul Jung-gu District Housing Association (Attorney Lee Jae-chul, Counsel for the plaintiff-appellant)

[Judgment of the court below]

Seoul High Court Decision 94Na31978 delivered on November 14, 1995

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

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

1. Regarding ground of appeal No. 1

A housing association does not construct or sell a new building with its own funds, but constructs a building fund to be borne by each member of the association in accordance with the process. Thus, even if a building permit and completion inspection have been conducted in the name of an association for the convenience of the construction procedure, the ownership of the building should be deemed to have been acquired at the original time by the association members, except for the housing portion sold to the general public and welfare facilities, barring special circumstances (see Supreme Court Decision 93Nu18839 delivered on June 24, 1994). In this regard, the court below determined that the apartment of this case was acquired at the original time by the association members of the Plaintiff association, and therefore, the Plaintiff association did not have any duty to pay acquisition tax, and did not have any errors of law as to the theory of lawsuit in the judgment below.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment of the court below, since the plaintiff association was established with the authorization of establishment from the head of the Gu on April 17, 191 pursuant to the provisions of Article 44 of the Housing Construction Promotion Act and the association established for the purpose of building and supplying apartment houses for the homeless members, and the association's subscription to and withdrawal from the association is also prepared in accordance with the regulations of the association. The plaintiff association acquired land of 486 and 12 parcels in Seoul, Jung-gu, Seoul, and received the approval of the business plan and received the notification of the acquisition tax to the head of the non-party association for the purpose of collecting acquisition tax from the non-party association 1 and the non-party association's non-party 1 and the non-party 2's non-party 1 and the non-party 2's non-party 2's non-party 2's non-party 1 and the non-party 3's non-party 2's non-party 2's non-party 9's non-party 1's non-party 3's non-party 19'.

However, acquisition tax is a tax by the method of tax return, in principle, and in this case, as a matter of principle, the tax liability is specifically determined by the person liable for duty payment by determining the tax base and the amount of tax and by the act of filing a return (limited to the case where the person liable for duty payment does not file a return from the person liable for duty payment). The act of tax payment is the performance of specific tax liability confirmed by the tax return, and local governments hold the tax amount paid based on the specific tax obligation. As such, unless the act of filing a return is void as a matter of course due to significant and obvious defects, it shall not be deemed as unjust enrichment. Here, as to whether the act of filing a return constitutes invalidation as a matter of course due to significant and apparent defects, the purpose, meaning, function, legal remedy, etc. of the act of filing a return shall be examined and determined rationally, and at the same time, the specific circumstances leading to the act of filing a return shall be individually and reasonably determined (see Supreme Court Decision 94Da31419

However, according to the relevant evidence and records, it is difficult to recognize that the Plaintiff Union made a voluntary declaration of the acquisition tax of this case without any tax liability. Rather, as decided by the court below, it is recognized that the Plaintiff Union was liable to pay the acquisition tax of this case even though it did not have such tax liability, and it is nothing more than a voluntary declaration and payment of the acquisition tax of this case. If the facts are the same, it cannot be readily concluded that the defect in the above report is serious even if it is serious.

Nevertheless, the court below, on the grounds as stated in its reasoning, judged that the act of reporting by the plaintiff union was null and void due to its significant and apparent defects. The court below erred by misunderstanding facts against the rules of evidence or misunderstanding the legal principles as to the invalidation of the duty of a duty return, which affected the conclusion of the judgment, and there is a reason to point this out.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices

Justices Shin Sung-sung (Presiding Justice)