Whether “before the registration or record is made” under Article 35 of the former Enforcement Decree of the Local Tax Act, which is the time limit for the registration of the transfer of property rights, etc. under Article 20(4) of the former Local Tax Act, refers to “before the registration or record is made” (affirmative) and whether Article 35 of the former Enforcement Decree of the Local Tax Act is invalid as it goes beyond the scope of the regulation under Article 20(4) of the former Local Tax Act, which is the mother corporation (negative)

In light of the language, content, and structure, etc. of the former Local Tax Act (amended by Act No. 13636, Dec. 29, 2015; hereinafter the same) and Articles 20(4) and 21(1), Article 36(1) and (2) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 27710, Dec. 30, 2016); Article 35 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 29512, Feb. 8, 2019); Article 29 subparag. 10 of the Registration of Real Estate Act (amended by Presidential Decree No. 29512, Dec. 29, 2015; hereinafter the same), a taxpayer is obliged to report or pay acquisition tax by the date of receipt of the application for registration; and even if such registration is permissible, it cannot be deemed that the registration is invalid by the date of receipt of the registration or application.

Article 20(4) of the former Local Tax Act (Amended by Act No. 13636, Dec. 29, 2015); Article 35 of the former Enforcement Decree of the Local Tax Act (Amended by Presidential Decree No. 29512, Feb. 8, 2019);

Abened Convention Co., Ltd. (Law Firm Nomination, Attorneys Kim Jae-hwan et al., Counsel for the plaintiff-appellant)

The head of Yeongdeungpo-gu Seoul Metropolitan Government

Daejeon High Court (Cheongju) Decision 2016Nu10672 decided May 24, 2017

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A. The Enforcement Decree of the Act does not change or supplement the contents of rights and obligations of an individual, or prescribe new contents not prescribed in the Act, unless otherwise prescribed by the Act. However, even though the content of the Enforcement Decree is merely a clear and systematic examination of the legislative purport of the parent law and the entire relevant provisions in an organic and systematic manner, and if it is intended to embody them based on the purport of the parent law, it shall not be deemed beyond the scope of the parent law’s regulation. Thus, even if there is no provision directly entrusting the parent law, it shall not be deemed null and void (see, e.g., Supreme Court Decision 2014Du8650, Dec. 1, 2016).

B. Article 20(4) of the former Local Tax Act (amended by Act No. 13636, Dec. 29, 2015; hereinafter the same) provides, “Where a person intends to register or register matters concerning the acquisition or transfer of property rights and other rights in the public register, he/she shall file a return on and pay acquisition tax before such registration is made.” As to the meaning of “before the registration or enrollment is made” under the foregoing provision, Article 35(4) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 29512, Feb. 8, 2019) provides, “before the registration or enrollment is made pursuant to Article 20(4) of the Act, the registration or application shall be made by the date of receipt of the registration or enrollment with the registry office.”

Meanwhile, Article 21(1) of the former Local Tax Act provides that where a person liable to pay acquisition tax fails to fulfill his/her obligation to report or pay acquisition tax under Article 20 of the former Local Tax Act, the tax authority shall pay the total amount of penalty tax calculated pursuant to Article 53-2 of the former Framework Act on Local Taxes (wholly amended by Act No. 14474, Dec. 27, 2016) to the principal tax by means of ordinary collection. In addition, Article 36(1) and (2) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 27710, Dec. 30, 2016; hereinafter the same shall apply) provides that where a taxpayer intends to register or register an object of taxation of acquisition tax, an application for registration or registration shall be accompanied by one copy of written notice of payment certificate of acquisition tax and one copy of written confirmation of payment certificate of acquisition tax or data converted the payment of acquisition tax to image information, the same shall not apply to cases where an administrative agency issuing an order to correct application by no later than the following date:

C. In light of the language, content, structure, etc. of the relevant provisions, when a taxpayer intends to register or register an object of taxation of acquisition tax, he/she shall file a registration or file an application for registration with the registry office by the date of receipt of the application, and even if a registry office permits correction of acquisition tax, etc. by the date following the date of receipt of the application for registration, it cannot be deemed that the payment deadline for acquisition tax is changed. Thus, it is reasonable to deem that “before a registration or a registration is made” as stipulated in the Enforcement Decree of the instant case, which is the time limit for filing a registration or a payment of acquisition tax, is “before a registration or a registration is made” as stipulated in Article 20(4) of the former Local Tax Act. Therefore, even if the enforcement decree of the instant case does not have any provision directly delegated to this, it cannot be deemed null and void. The reasons are as follows.

1) Article 150-2(1) of the former Local Tax Act, which was amended by Act No. 5615 of Dec. 31, 1998, provides that the time limit for filing registration tax shall be “before registration or enrollment is made.” After the amendment, Article 150-2(1) of the former Local Tax Act provides that “before registration or enrollment is made under the conditions as prescribed by the Presidential Decree,” and Article 104-2(1) of the Enforcement Decree of the former Local Tax Act, amended by Act No. 15982, Dec. 31, 1998, provides that “not later than the date on which an application for registration or enrollment is received to the registry office or the registration office” shall be “not later than the date on which an application for registration or enrollment is received” and Article 150-2(1) of the former Enforcement Decree of the Local Tax Act, which provides that “No. 20 years before the wholly amended by Act No. 1021, Mar. 31, 20190>

2) In addition, Article 21 of the former Local Tax Act includes the collection of additional tax in cases where a person liable to pay acquisition tax fails to report or pay acquisition tax by the due date for filing acquisition tax return and payment under Article 20(4) of the former Local Tax Act. However, as alleged by the Plaintiff, in cases where “not later than the date the registration or registration is completed” under Article 20(4) of the former Local Tax Act is deemed to be “not later than the date the registration or registration is completed,” and in cases where a person liable to pay acquisition tax intends to register or register property rights, etc., the date the registration or registration procedures are completed. As such, the registration or registration procedures cannot be completed without the payment of acquisition tax. Accordingly, it cannot be deemed that the tax authority collects additional tax due to failure to comply with the due date for filing acquisition tax return and payment under Article 20(4) of the former Local Tax Act based on Article 21 of the former Local Tax Act. Therefore, “before the registration or registration” under Article 20(4) of the former Local Tax Act cannot be interpreted as “the date the registration or registration office.”

3) In addition, Article 36(1) and (2) of the former Enforcement Decree of the Local Tax Act provides that a notice of payment certificate of acquisition tax shall be attached to a registration or registration application under the premise that an advance payment of acquisition tax, etc. is made before the registration or registration application is received. The same premise as Article 29 subparag. 10 of the Registration of Real Estate Act also provides that cases where acquisition tax is not paid

4) Meanwhile, where a person liable to pay acquisition tax regards the reporting and payment deadline of acquisition tax under Article 20(4) of the former Local Tax Act as “not later than the date on which an application for registration is received by the registry office,” the person liable to pay acquisition tax will not be obliged to pay penalty in cases where an application for registration was filed after acquisition tax was not paid or an application for registration was withdrawn or rejected. On the other hand, it would result in imposing penalty tax in cases where acquisition tax was paid after the date of receipt of an application for registration in response to order of correction by the registry office. However, in order to secure priority in registration according to the receipt number of an application for registration, there may be cases where a person liable to pay acquisition tax first and later pays acquisition tax according to his/her needs. Furthermore, even if an application for registration was first made, whether to withdraw an application for registration or pay acquisition tax in response to order of correction for the benefit of securing priority in order to avoid additional tax burden, and even

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Plaintiff purchased 17 lots of land and buildings (hereinafter “instant real estate”) located in Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-gu, and submitted an application for ownership transfer registration with respect to the instant real estate to the Cheongju District Court through a certified judicial scrivener. The said application was received on June 3, 2015.

B. On June 4, 2015, the following day, the Plaintiff reported and paid acquisition tax, etc. on the instant real estate to the Defendant.

C. On May 25, 2016, the Defendant confirmed that the relevant acquisition tax, etc. had been paid on the day following the receipt of the application for registration of transfer of ownership to the instant real estate, and issued the instant disposition imposing general non-return penalty tax, etc. on the Plaintiff.

3. Examining such factual basis in light of the legal principles as seen earlier, even though the Plaintiff should file and pay acquisition tax, etc. by the date of receipt of an application for registration of transfer of ownership of the instant real estate to the registry office pursuant to Article 21(1) of the former Local Tax Act, the Plaintiff received an application for registration of transfer of ownership of the instant real estate on June 3, 2015, and filed and paid acquisition tax, etc. on June 4, 2015, barring any special circumstance, it is reasonable to deem that it is subject to collection of additional tax, etc. under Article 21(

Nevertheless, solely on the grounds indicated in its reasoning, the lower court: (a) premised on the premise that “before the registration or record is completed” under Article 20(4) of the former Local Tax Act; and (b) based on the foregoing premise, the instant provision of the Enforcement Decree limits the payment deadline of acquisition tax to the date of receipt of an application for registration or record without delegation of the former Local Tax Act; and (c) further and invalid as it violates the principle of no taxation without law and the principle of statutory reservation; and (d) accordingly, determined that the instant disposition imposing penalty on the Plaintiff for acquisition tax,

In so determining, the lower court erred by misapprehending the legal doctrine on the principle of no taxation without law and the principle of statutory reservation, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

4. 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.

Justices Lee Dong-gu (Presiding Justice)