2017 247403 Disposition of revocation of imposition of acquisition tax, etc.

Bentent Convention Co., Ltd.

Law Firm Nomination et al.

Attorney Kim Jae-hwan et al.

The head of Yeongdeungpo-gu Seoul Metropolitan Government

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

October 15, 2020

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 relevant provisions in an organic and systematic manner, which is possible to interpret the parent law, or where it is intended to embody them based on the purport of the provisions 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 delegating the parent law, it shall not be deemed invalid (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 registers or intends to 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 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 29512, Feb. 8, 2019) (hereinafter “Enforcement Decree”). Article 20(4) of the former Local Tax Act provides, “Until the registration or enrollment is made pursuant to Article 20(4) of the Act, an application for registration or enrollment 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 taxpayer 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 collect the total amount of penalty tax calculated in accordance with the provisions of Article 53-2 of the former Framework Act on Local Taxes (wholly amended by Act No. 1474, Dec. 27, 2016) as tax amount 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, the tax authority shall attach one copy of the notice of payment certificate of acquisition tax or one copy of the confirmation document of payment certificate of acquisition tax or the data converted the same into electronic image information to an administrative agency. In the meantime, Article 29 of the Registration of Real Estate Act provides that an applicant may correct or revise:

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

1) Article 150-2(1) of the former Local Tax Act, which was amended by Act No. 5616 of Dec. 31, 1998, determined the time limit for the return and payment of registration tax as “before the registration or enrollment is made.” After the amendment, Article 150-2(1) of the former Local Tax Act was stipulated as “before the registration or enrollment is made under the conditions as prescribed by the Presidential Decree.” Article 104-2(1) of the Enforcement Decree of the Local Tax Act, which was amended by Presidential Decree No. 16673 of Dec. 31, 198, provides that “not later than the date the application for registration or enrollment is received to the registry or the registration authority.” Article 150-2(1) of the former Local Tax Act, which was amended by Act No. 1021, Mar. 31, 2010; however, Article 150-2(1) of the former Local Tax Act, which was amended by Act No. 10000, the acquisition tax and registration tax related to the new tax item.

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 “before the registration or registration is completed” under Article 20(4) of the former Local Tax Act is deemed “not later than the date the registration or registration is completed”, and where a person liable to pay acquisition tax registers or registers property rights, the due date for filing acquisition tax or registration shall be the date the registration or registration procedure is completed. Since the registration or registration procedure cannot be completed without the payment of acquisition tax, it cannot be said 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. Accordingly, “before the registration or registration” under Article 20(4) of the former Local Tax Act shall be interpreted as “within 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 acquisition tax, etc. is to be paid in advance before the registration or registration application is received, and Article 29 subparag. 10 of the Registration of Real Estate Act also provides that cases where acquisition tax

4) Meanwhile, where a person liable to pay acquisition tax deems that the deadline for filing and payment of acquisition tax under Article 20(4) of the former Local Tax Act is “not later than the date of receipt of an application for registration or an application for registration to the registry office,” the person liable to pay acquisition tax would not bear penalty in the event that the application for registration was filed while acquisition tax was not paid or the application for registration was withdrawn or rejected. However, in response to the order of correction issued by the registry office, additional tax would be imposed if acquisition tax was paid after the date of receipt of the application for registration. However, there may be cases where a person liable to pay acquisition tax first and later pays acquisition tax according to his/her needs in order to secure priority of registration according to the receipt number of the application for registration. Furthermore, even if the first application for registration was made, whether to withdraw the application for registration or pay acquisition tax in response to the order of correction for the benefit of securing priority, and it is merely a result of failing to comply

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-si, and submitted an application for ownership transfer registration 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 Plaintiff reported and paid acquisition tax, etc. on the instant real estate to the Defendant on June 4, 2015, which is the following day.

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 penalty tax, etc. on the Plaintiff on the Plaintiff regarding acquisition tax.

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 2

Nevertheless, solely based on its stated 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 premise that “before the registration or record is completed,” the instant enforcement decree limits the time limit for payment 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) thus, is null and void in violation of the principle of no taxation without representation and the principle of statutory reservation; and (d) accordingly, determined that

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 Young-gu

Justices Lee Dong-won

Justices Park Jong-young

Justices Kim Gin-soo