(영문) 대구고등법원 2010.7.9.선고 2010누468 판결

3. Of the indication of parties in the judgment of the court of first instance, the term "the head of Gllangdo" shall be corrected to the term "the head of Glurido".

Purport of claim and appeal

1. Purport of claim

On June 12, 2007, the defendant confirmed that the imposition of acquisition tax and special tax for rural development stated in the attached list against the plaintiff on June 12, 2007 is all invalid.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Particulars leading to filing acquisition tax and payment notices by the defendant;

A. On June 11, 2007, the Plaintiff entered into a sales contract under which the Plaintiff shall purchase each real estate listed in the [Attachment List of Farmland Ownership (hereinafter “instant real estate”) in total 5.30 million won, and shall pay the full amount of the purchase price on the day of the said contract (hereinafter “instant sales contract”). On the same day, the Plaintiff delegated the affairs concerning the application for ownership transfer registration and the registration of acquisition tax to the certified judicial scrivener.

B. On June 12, 2007, the day following the date of the instant sales contract by a certified judicial scrivener, the Plaintiff reported to the Defendant the real estate transaction contract in accordance with the instant sales contract, and reported acquisition tax and special agricultural and fishing villages tax recorded in the attached list to the Defendant (hereinafter referred to as the “instant report”). Article 72(1) of the Local Tax Act provides that the Defendant imposed acquisition tax and special agricultural and fishing villages tax on the Plaintiff on the same day pursuant to Article 72(1) of the Local Tax Act, and thus, “the instant disposition of imposition” was rendered. The Plaintiff was unable to pay the purchase price of this case to leapdong. The Plaintiff rescinded the instant sales contract by agreement on July 15, 2007, and submitted to the Defendant a report on cancellation of a real estate transaction contract with the purport that the instant sales contract was rescinded on September 27, 2007.

D. After that, on April 22, 2008, the registration of ownership transfer was completed in the name of Kim Jong-Gyeong and the real estate in this case on April 22, 2008.

E. On July 29, 2009, the Plaintiff did not pay acquisition tax and special rural development tax according to the instant report, the Defendant notified the Plaintiff to pay acquisition tax of KRW 8,783,180 (including additional tax) and KRW 723,540 (including additional tax), acquisition tax of KRW 731,350 (including additional tax), acquisition tax of KRW 3,606,050 (including additional tax) and special rural development tax of KRW 287,030 for real estate.

F. On August 10, 2009, the Plaintiff did not pay acquisition tax and special rural development tax even after receiving a notice of payment. On August 10, 2009, the Defendant again notified the Plaintiff to pay acquisition tax of KRW 8,864,630 (including additional tax) and special rural development tax of KRW 723,540 (including additional tax), acquisition tax of KRW 738,130 (including additional tax), acquisition tax of KRW 3,639,490 (including additional tax), and special rural development tax of KRW 287,030 (including additional tax).

[Based on Recognition] A’s non-contentious facts, Gap’s evidence 1-1-4, Gap’s evidence 2, Gap’s evidence 34.7-1-3, Gap’s evidence 5-1-2, Gap’s evidence 6-1 through 6, Eul’s evidence 1-4, Eul’s evidence 5-1 and 5-2, testimony of the witness at the court of first instance, and the purport of whole pleadings

2. Determination as to the invalidity of the instant reporting act

A. The plaintiff's assertion

The Plaintiff concluded a sales contract, but failed to acquire the instant real estate by rescinding the sales contract and not paying the purchase price at all, and thereby did not establish a tax liability, such as acquisition tax. Therefore, the instant reporting act is null and void due to its significant and apparent defect, and thus, the instant disposition of imposition is null and void.

B. Determination

(1) Where an act of filing acquisition tax return is conducted between a taxpayer and a tax authority, and the protection of a third party trusting the existence of an act of filing acquisition tax is not particularly problematic, and such act does not seriously undermine legal stability even if the act of filing a return is null and void, while there is a defect in heavy tax requirements, etc., and the legal remedy is relatively insufficient compared with the national tax, and it is reasonable to exceptionally mean that the act of filing a return should be deemed null and void, in exceptional cases where special circumstances exist to deem that the act of filing a return is considerably unreasonable in light of the stability of tax administration and the smooth operation request of the taxpayer, even if considering special circumstances exist to deem that the act of filing a return is considerably inappropriate in terms of protecting rights and interests of the taxpayer (see, e.g., Supreme Court Decision 200

(2) Article 29(1)1 of the Local Tax Act provides that "acquisition tax shall come into existence when it acquires any object of taxation of acquisition tax," and Article 105(2) of the Local Tax Act provides that "it shall be deemed that acquisition is made when it is actually acquired even if it fails to perform registration, etc. under the provisions of relevant Acts and subordinate statutes, such as the Civil Act, with respect to the acquisition of real estate." " de facto acquisition" refers to a case where: (a) it does not meet the formal requirements for the acquisition of ownership, such as registration, but meets the substantive requirements for the acquisition of ownership, such as the payment of price, although it does not meet the registration (see, e.g., Supreme Court Decisions 2009Da5001, Apr. 23, 2009; 99Du5955, Feb.

(3) In the case of this case, the Plaintiff, while having failed to pay the purchase price of this case to the leapdong, rescinded the sales contract of this case on or around July 15, 2007, and thus, the Plaintiff did not actually acquire the real estate of this case, and therefore, the Plaintiff did not pay each acquisition tax, etc. on the real estate of this case.

(4) As such, there is a serious defect in the acquisition of the Local Tax Act without fulfilling the taxation requirement under the Local Tax Act. Although the legal remedy is relatively insufficient compared to the national tax, it seems significantly unreasonable from the perspective of remedy for rights and interests of the Plaintiff, and in the case of the instant filing act with respect to acquisition tax, etc., the protection of the third party trusting the existence of such filing act is not particularly a special issue, and thus, it seems that the legal stability is not significantly impeded even if the filing of the instant filing act is null and void, it is reasonable to deem that there are special circumstances to deem that the instant filing act is null and void. Accordingly, the instant filing act is null and void, and its confirmation is based on this.

The disposition of this case also seems to be null and void.

3. Conclusion

The judgment of the court of first instance is just, and the appeal by the defendant is dismissed as there is no reason, and the defendant's appeal is corrected as the "the head of Sillung-do" among the indication of parties to the judgment of the court of first instance to the "the head of