[1] In a case where the conditions stipulated in a sales contract after the completion of the registration of transfer of ownership under a sales contract have been fulfilled and the price reduction has been made, whether the exercise of a tax claim established on the basis of the tax base at the time of the acquisition (negative in principle), and whether a request for correction under the former Framework Act on Local Taxes can be filed on the sole basis

[2] The case holding that in case where Gap et al. received an apartment unit and completed the registration of transfer of ownership at the time when two years elapsed from the expiration date of the designation of occupancy, Gap et al. filed a claim for correction to refund acquisition tax equivalent to the remaining delayed payment within a certain extent after offsetting the market price in accordance with the apartment supply contract, and Gap et al. rejected such claim, the above ground does not constitute the ground for filing a request for correction for ordinary correction under Article 51 (1) 1 of the former Framework Act on Local Taxes, Article 51 (2) 3 of the former Enforcement Decree of the Framework Act on Local Taxes, Article 30 subparagraph 2 of the former Framework Act on Local Taxes

[1] Acquisition tax is not imposed by taking advantage of the fact that the transfer of the original goods is the transfer of the goods, and it is a kind of distribution tax that recognizes and imposes a tax-bearing force. As such, since real estate acquisition tax is a tax-oriented act of acquiring real estate, a taxation claim is naturally created upon the existence of a taxation requirement that is an act of acquiring real estate. On the other hand, even if a contract is rescinded after the lawful acquisition, or becomes retroactively invalidated by the fulfillment of the condition of rescission or the exercise of the right to cancel, etc., this does not affect the exercise of a tax claim already established.

In light of the nature and nature of acquisition tax, etc., even if the conditions stipulated in a sales contract after the completion of registration of transfer of ownership under a sales contract have been fulfilled and the price reduction has been made, as long as lawful acquisition based on the initial acquisition value exists, barring any special circumstance, the aforementioned grounds cannot affect the exercise of tax claims established based on the tax base at the time of acquisition. Therefore, a request for ordinary correction under Article 51(1)1 of the former Framework Act on Local Taxes (Amended by Act No. 13293, May 18, 2015) or a request for subsequent correction under Article 51(2)3 of the former Enforcement Decree of the Framework Act on Local Taxes (Amended by Presidential Decree No. 27958, Mar. 27, 2017) cannot be filed solely for the foregoing reasons.

[2] In a case where Party A, etc., etc., reported and paid the acquisition tax and completed the registration of transfer of ownership at the time when the market price of the apartment building was lowered than the sale price at the time when two years elapsed from the expiration date of the designation of occupancy, and Party A, etc., offseted the remaining delayed payment under the apartment supply contract within a certain scope, and sought for the refund of acquisition tax corresponding to such amount, but the competent head rejected such claim, the case holding that the above ground does not affect Party A, etc.’s tax liability based on the tax base at the time of acquisition, on the ground that it does not affect Party A, etc.’s tax liability, and thus does not constitute a ground for ordinary request for correction under Article 51(1)1 of the former Framework Act on Local Taxes (Amended by Act No. 13293, May 18, 2015) or a ground for request for correction under Article 30 subparag. 2 of the former Enforcement Decree of the Framework Act on Local Taxes (wholly amended by Presidential Decree No. 27958, Mar. 27

[1] Article 7 (1) of the Local Tax Act, Article 51 (1) 1 of the former Framework Act on Local Taxes (Amended by Act No. 13293, May 18, 2015; see current Article 50 (1) 1 of the Framework Act on Local Taxes), Article 51 (2) 3 of the former Framework Act on Local Taxes (see current Article 50 (2) 3 of the Framework Act on Local Taxes); Article 30 subparagraph 2 of the former Enforcement Decree of the Framework Act on Local Taxes (Amended by Presidential Decree No. 27958, Mar. 27, 2017); Article 7 (1) of the Local Tax Act; Article 51 (1) 1 of the former Framework Act on Local Taxes (Amended by Act No. 13293, May 18, 2015; see current Article 50 (1) 1 of the Framework Act on Local Taxes); Article 50 (2) 3 of the former Enforcement Decree of the Framework Act on Local Taxes)

[1] Supreme Court Decision 95Nu12750 Decided February 9, 1996 (Gong1996Sang, 999), Supreme Court Decision 98Du1428 Decided December 8, 1998 (Gong199Sang, 167), Supreme Court Decision 99Du6651 Decided April 10, 2001, Supreme Court Decision 2015Du49696 Decided June 8, 201 (Gong2017Ha, 1485), Supreme Court Decision 2015Du44363 Decided June 15, 2017

See Attached List of Plaintiffs (Law Firm Samdeok, Attorneys Kim Sim-sik et al., Counsel for the plaintiff-appellant)

Head of Busan Metropolitan Government

Busan High Court Decision 2015Nu21582 decided November 4, 2015

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. Acquisition tax is not imposed by taking advantage of the fact that the transfer of the original goods is the transfer of the goods, and is a kind of distribution tax that imposes the recognition and imposition of the tax-bearing force (see, e.g., Supreme Court Decision 2015Du49696, Jun. 8, 2017). As such, real estate acquisition tax is an act of acquiring real estate as a taxable object, it is naturally caused by the existence of a taxation requirement that the acquisition is an act of acquiring real estate. As long as the acquisition is lawfully made, even if the contract is rescinded after the conclusion of the contract, the fulfillment of the condition of rescission, or the exercise of the right to cancel, etc., even if the acquisition becomes retroactively effective, it does not affect the exercise of the already established tax claim (see, e.g., Supreme Court Decision 9Du651, Apr. 10, 201).

In light of the nature and nature of acquisition tax, etc., even if the conditions stipulated in a sales contract have been fulfilled after the completion of registration of transfer of ownership under a sales contract and the price reduction has been made, barring any special circumstance, as long as legitimate acquisition exists based on the initial acquisition value, the aforementioned grounds cannot affect the exercise of tax claims established based on the tax base at the time of acquisition. Therefore, a request for ordinary correction under Article 51 (1) 1 of the former Framework Act on Local Taxes (amended by Act No. 13293, May 18, 2015; hereinafter the same shall apply) or a request for subsequent correction under Article 51 (2) 3 of the same Act, Article 30 subparagraph 2 of the former Enforcement Decree of the Framework Act on Local Taxes (amended by Presidential Decree No. 27958, Mar. 27, 2017; hereinafter the same shall apply) cannot be filed solely on the ground as above.

2. A. Comprehensively taking account of the adopted evidence, the lower court acknowledged the following facts: (a) the Plaintiffs reported and paid the acquisition tax, along with a supply contract for an apartment, and a written confirmation of payment for the purchase price, and completed each registration of ownership transfer for an apartment; (b) however, as the market price of the apartment of this case falls below the sale price at the end of two years after the expiration of the designation of occupancy; (c) the Plaintiffs disposed of the remainder delayed payment under the supply contract within a certain scope set-off against the price decline; and (d) filed a claim for correction of acquisition tax equivalent to the amount set-off by the Plaintiffs; and (e)

B. Next, the lower court determined that the instant disposition was lawful on the grounds that the Plaintiffs’ assertion did not constitute an ordinary ground for filing a correction claim under Article 51(1)1 of the former Framework Act on Local Taxes, and that the period for filing a subsequent request for correction under Article 51(2)3 of the former Framework Act on Local Taxes was expired, on the grounds that the Plaintiffs filed a request for correction after the lapse of the period for filing the

C. Examining the aforementioned legal principles and records, the grounds alleged by the Plaintiffs do not affect the Plaintiffs’ obligation to pay acquisition tax based on the tax base at the time of acquisition, and do not constitute the grounds for ordinary request for correction under Article 51(1)1 of the former Framework Act on Local Taxes, or the grounds for ex post facto request for correction under Article 51(2)3 of the same Act and Article 30 Subparag. 2 of the former Enforcement Decree of the Framework Act on Local Taxes. Thus, the lower court’s conclusion that the instant disposition is lawful is justifiable, and it did not err by misapprehending the legal doctrine

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Park Sang-ok (Presiding Justice)