2015du3645 Revocation of Disposition of Imposing acquisition tax, etc.

A limited liability company specialized in the primary securitization of emulshion cases

Head of Gwanak-gu

Seoul High Court Decision 2013Nu53433 Decided January 14, 2015

December 23, 2015

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

The grounds of appeal are examined.

1. As to the assertion of misapprehension of legal principles as to the interpretation of acquisition tax reduction and exemption regulations on real estate acquired by a special purpose company and the application of

A. Articles 120(1)12 and 119(1)13 of the former Restriction of Special Taxation Act (amended by Act No. 10406, Dec. 27, 2010; hereinafter “former Special Provisions on Taxation”) provide that “Where a special purpose company acquires securitization assets from an asset holder or another special purpose company, or manages, operates, or disposes of the acquired securitization assets from an asset holder or another special purpose company in accordance with an asset-backed securitization plan, acquisition tax shall be reduced by 50/100 for real estate acquired until December 12, 2012; however, acquisition tax shall be reduced by 0/100 for real estate acquired from the asset-backed securitization company, which was amended by Act No. 10406, Jan. 1, 201; hereinafter “Special Provisions on Taxation”) or 120(1)9 of the Restriction of Special Taxation Act (amended by Act No. 10406, Jan. 1, 201).

On the other hand, Article 2 (6) of the Addenda to the amended special provisions of the Act provides that "the amended provisions of this Act concerning acquisition tax shall apply from the first acquisition after the enforcement of this Act," while Article 52 (hereinafter referred to as "the supplementary provisions of this case") provides that "the previous provisions shall apply to the local tax imposed, reduced, or exempted in accordance with the previous provisions at the time of enforcement of this Act" as a general transitional measure.

B. If a tax law provides that "tax imposed, or to be reduced or exempted pursuant to the previous provisions at the time of the enforcement of the Act" to the effect that " taxes to be imposed, or exempted pursuant to the preceding provisions of the Act shall be governed by the previous provisions," it is intended to protect the taxpayer's right to obtain profit or trust. Thus, for the purpose of applying the previous provisions of the Act before the amendment, tax liability should be established upon satisfying all the taxation requirements at the time of the amendment, or even if the tax requirements are not satisfied, the taxpayer's act closely related to the requirements of taxation at the time of the amendment, such as acquiring a certain legal status or forming legal relations, and thus, the special provisions of the Act on Special Cases Concerning the Management and Disposal of Real Estate by Transfer of Real Estate, other than those of the Act on Special Cases Concerning the Management and Operation of Real Estate, should be applied to a special purpose company for the purpose of the acquisition of real estate acquired by transfer of real estate at the time of the amendment (see, e.g., Supreme Court en banc Decision 93Nu5666, May 24, 1998).

On the other hand, the amended special law was amended disadvantageous to a special purpose company by reducing the scope of reduction and exemption of acquisition tax. The former special purpose company’s provision is deemed to have provided that acquisition tax shall be reduced or exempted in cases where real estate is acquired as part of the act of managing, operating, and disposing of the securitization assets acquired by the special purpose company for a limited period until December 31, 2012. The supplementary provision of this case provides that acquisition tax to be reduced or exempted pursuant to the former special purpose company’s provisions for the protection of trust in the special purpose company. Thus, in cases where a special purpose company conducts an act closely related to the acquisition of real estate as part of the act of managing, operating, and disposing of securitization assets at the time of the enforcement of the former special purpose law, the former special purpose provision of

Therefore, in cases where a special purpose company acquired the secured collateral bonds, which are securitization assets, at the time of the enforcement of the former special purpose law, and applied for an application for purchase at the auction procedure of the secured real estate, and obtained a decision of permission for sale, and thereby acquired the status of purchaser or purchaser, and thereby becomes closely related to the acquisition of real estate, acquisition tax shall be reduced or exempted pursuant to the former special purpose law pursuant to the provisions of the Addenda of this case for the protection of trust of the special purpose company. However, even if the sales proceeds have been fully paid after the enforcement of the amended special purpose law, where the special purpose company merely acquired the secured collateral bonds, which are securitized assets, at the time of the enforcement of the former special purpose law, and the special purpose company acquired the secured collateral bonds, which are securitized assets at the time of the enforcement of the former special purpose law, even if it trusted the acquisition tax reduction or exemption on the acquisition of the secured collateral bonds, it cannot be deemed as just expectation and it should be deemed that the trust should be protected, and thus, acquisition tax shall not be reduced or exempted (see, e.g., Supreme Court Decision 2015Du3652).

D. In the same purport, the lower court was justifiable to have determined that the acquisition tax of the instant real estate is not reduced due to the application of the special law on the acquisition of the instant real estate since the Plaintiff, a special purpose company, acquired the instant real estate by taking over and holding the bonds secured by the instant real estate at the time of the enforcement of the former special law, and participated directly in the auction procedure to recover the relevant bonds after the enforcement of the amended special law, and there was no error by misapprehending the interpretation of the special law on the amended special law or the legal principles on the protection of trust under the

2. As to the assertion of misapprehension of the legal principles as to "justifiable cause" that can be exempted from the imposition of the principle of trust protection and penalty tax

For the reasons indicated in its holding, the lower court determined that the Plaintiff cannot be deemed to have acquired the instant real estate because the Plaintiff trusted that acquisition tax would be reduced or exempted on the acquisition of the instant real estate without any cause due to the Defendant’s public opinion statement, and that the Plaintiff did not perform his duty to report and pay the instant acquisition tax. Examining the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and did not err by misapprehending the legal doctrine on “justifiable cause” that may be exempted from the imposition of the principle of trust protection or penalty tax.

3. As to the assertion of misapprehension of legal principles as to duty payment notice

A. According to Article 2(1)15 and Article 55(1) of the Framework Act on Local Taxes and Article 36 of the Enforcement Decree of the Framework Act on Local Taxes, a local tax payment notice shall be based on a tax payment notice stating the taxable year and items of the local tax to be paid, the provisions of the Act and municipal ordinances of the relevant local government, the taxpayer’s address and name, tax base, tax rate, amount of tax, deadline for payment, place for payment, measures to be taken in the event that the local tax is not paid by the due date for payment, and the method of remedy for the illegality or mistake of the imposition. The above provisions purport to ensure the fairness of tax administration by having the tax authority take a careful and reasonable disposition in accordance with the principle of no taxation without law, and at the same time, to provide the taxpayer with a detailed information about the details of the taxation disposition, and to provide the taxpayer with convenience in filing an objection. As such, a tax payment notice must, in principle, specify property so that the taxpayer can know in detail the details of the taxation disposition, and specify the basis for taxation amount, tax base and applicable rate (see, 20171.

In addition, when both a principal tax and a penalty tax are to be imposed based on a single tax payment notice, the said tax notice shall specify the respective amount and the basis for calculation of the principal tax and the penalty tax. In cases where multiple types of penalty taxes are to be imposed together, the amount and the basis for calculation thereof are divided into different types of penalty taxes. As such, even in cases where the respective amount and the basis for calculation of the principal tax and the penalty taxes are not clearly divided and stated without properly distinguishing the amount and the basis for calculation of the principal tax and the penalty taxes, the said tax disposition is unlawful (see, e.g., Supreme Court en banc Decision 201

Meanwhile, if it is evident that a taxpayer was not at all hindered in the determination of whether he/she is dissatisfied with the disposition and filing an objection by a notice of tax notice sent by the tax authority prior to the taxation disposition, it can be deemed that the defect of the tax notice was supplemented or cured. However, the document that can supplement the defect of the tax notice should be limited to the document that can supplement the defect of the tax notice to be delivered to the taxpayer prior to the issuance of the tax notice pursuant to statutes, etc., so that it can be combined with the tax notice, and the necessary matters to be stated should be properly (see, e.g., Supreme Court Decision 2005Du5505, Oct. 13, 2005).

B. According to the reasoning of the judgment below and the evidence duly admitted by the court below, ① the tax notice of this case includes only the principal tax as to the acquisition tax and the additional tax, and the tax amount between the additional tax and the additional tax are not separately stated. With respect to the local education tax and the special tax for rural development, only the total amount of tax by tax item, including the additional tax and the additional tax, is stated in each principal tax, and there is no separate entry of the tax amount for each principal tax and its additional tax or the tax amount between additional taxes. ② In addition, the tax notice of this case contains only the tax base of acquisition tax, but does not state the basis of calculation of acquisition tax, local education tax, and special tax for rural development (hereinafter referred to as "acquisition tax, etc.") and the additional tax. ③ Although each principal tax amount of the principal tax such as acquisition tax, the tax base of acquisition tax, and the additional tax on negligent tax for each principal tax such as the acquisition tax, and the additional tax on negligent tax and the additional tax on negligent tax are not stated.

Examining these facts in light of the legal principles as seen earlier, each principal tax of the acquisition tax of this case and the notice of tax payment of additional tax are defective, and the defect is not supplemented or cured. Thus, the disposition of this case is unlawful.

Nevertheless, the lower court determined that the instant disposition was lawful on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the duty payment notice, thereby adversely affecting its judgment.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Justices Lee In-bok

Justices Kim Gin-young

Chief Justice Lee Dong-won