Seoul Central District Court-2015-Ban-5132433 ( December 04, 2015)

It is insufficient to recognize that there is a serious defect in the taxation disposition of this case, and there is no other evidence to acknowledge it.

It is insufficient to recognize that there was a serious defect in the instant taxation disposition, and even if there was a defect, it is difficult to view that the defect in the instant taxation disposition was objectively obvious to the Defendant, and therefore, the instant taxation disposition cannot be deemed null and void as a matter of course.

Articles 3 and 11 of the Gross Real Estate Tax Act

2015Na5132433 Undue gains

AAA, Inc.

Korea

Seoul Central District Court Decision 2015Da5132433 Decided December 4, 2015

May 20, 2016

July 1, 2016

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 122,43,780 won and 38,896,730 won among them, 40,549,810 won, 20% per annum from February 15, 2013 to December 13, 2013, 200 won, 42,987,240 won per annum from December 13, 2013 to the service date of a duplicate of the complaint of this case, and 2.5% per annum from the next day to the day of full payment.

1. Basic facts

A. Taxation against the plaintiff

On November 16, 2011, November 16, 2012, November 16, 2012, and November 16, 2013, the head of the tax office affiliated with the Defendant imposed on the Plaintiff the special rural development tax, which is the objective tax imposed on the comprehensive real estate holding tax for the year 2011, 2012, and 2013 and its tax liability, as indicated in the following table, on the land listed in the attached Table 1 (hereinafter referred to as “instant land”). The Plaintiff paid the instant attached tax at the date of the pertinent payment indicated below.

B. Plaintiff’s housing construction project

1) The Plaintiff, a company established on August 4, 2005 for the purpose of housing construction and sales business, etc., acquired the instant land to build and sell multi-family housing on May 29, 2006, and registered as a housing construction business operator on September 20, 2007.

2) On August 29, 2007, the Plaintiff submitted an application for approval of the housing construction project plan to newly build 29,198.20m20m2, 5,710m2, 75,678m2 and 420 m20 apartment units on the land outside 151 and 78m2, North-gu, Seoul Special Metropolitan City Mayor on the CC, Seoul Special Metropolitan City Mayor, and received a disposition to return the said application on March 9, 2009. Accordingly, the Plaintiff filed an administrative lawsuit seeking revocation of the said return disposition with the ○○ District Court 2009Guhap2056, and the above court rendered a decision to revoke the said return on April 14, 2010. The CC mayor appealed appealed with the above judgment and appealed with the ○○ High Court 2010Nu741, but the appeal became final and conclusive on August 13, 2010.

3) On September 17, 2010, theCC market approved and publicly notified the housing construction project plan that newly constructs 420 units of apartment units on the land outside 151, and 76 units of the north-gu Dadong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong (hereinafter referred to as the “instant construction”). On April 18, 2013, the project operator announced the Plaintiff and the project operator from May 9, 2013 to July 9, 2015, the project plan that newly constructs 1585 units of apartment units on the land (hereinafter referred to as the “instant construction project”).

4) On June 2013, the Plaintiff commenced the instant construction work on the ground of the aforementioned Ddong No. 151 and 75 lots.

[Reasons for Recognition] Facts without dispute, Gap 1 through 6, 11 evidence, Eul 1, 2 and 3 evidence (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The plaintiff's assertion

The instant land was subject to the approval of a project plan under the Housing Act by a housing construction business operator to construct housing at the time of each tax base date of the instant tax assessment ( June 1, each year). As such, “land subject to the instant tax assessment” under Article 106(1)3 (e) of the Local Tax Act and Article 102(5)7 of the Enforcement Decree of the Local Tax Act, it cannot be subject to general aggregate taxation, and thus, it cannot be subject to general aggregate taxation. However, the North Korean government issued a disposition imposing property tax by classifying the instant land as general aggregate taxation from year 2011 to year 2013. However, there is a significant and apparent defect that the instant disposition imposing property tax, which is the preceding disposition, was succeeded to the instant tax assessment, which is the subsequent disposition. Accordingly, the instant tax assessment becomes null and void due to the existence of a significant and obvious reason, and the Defendant is obligated to return KRW 122,43,780 as unjust enrichment paid by the Plaintiff.

3. Determination

(a) Related Acts and subordinate statutes;

Attached Form 2 shall be as listed in attached Table 2.

B. Whether the instant taxation disposition is void as a matter of course

1) In order for a taxation disposition to be null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient to be sufficient to say that the defect is an important and objective violation of laws and regulations, and in determining whether the defect is significant and obvious, it is necessary to reasonably consider the purpose, meaning, function, etc. of the laws and regulations, which serve as the basis for the pertinent taxation, from a teleological perspective and at the same time, the specificity of the specific case itself. In addition, a taxation disposition against a person who does not have any legal relations or factual relations, which are subject to taxation, can be deemed as serious and obvious, but if objective circumstances exist that make it possible to accurately investigate the facts about the legal relations or factual relations which are not subject to taxation, if it is apparent that the defect is obviously obvious even if it is serious, it cannot be deemed as a rightful invalidation (see Supreme Court Decision 200Da24986, Jul. 10, 201).

2) As to whether the instant taxation disposition imposed a general cumulative taxation on the land subject to separate taxation, its defect is serious and clear and thus, it is reasonable to determine whether it is void as a matter of course.

Article 106(1)3 of the Local Tax Act provides that property tax system shall apply only to land subject to separate taxation; Article 106(1)3 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 25058, Jan. 1, 2014; Presidential Decree No. 24296, Jan. 1, 2013; hereinafter the same) provides that "land provided for a housing construction project as land for which a housing construction business operator registered pursuant to the Housing Act has obtained approval of a business plan under the same Act to construct housing." "Land provided for a housing construction project" under the same provision means land subject to separate taxation, which needs heavy taxation or transitional taxation in accordance with policy consideration. In addition to the purpose of the property tax system that intends to supplement unreasonable outcomes from comprehensive taxation by exceptionally applying separate standards, it means that property tax system is relatively long-term construction works and construction works are required to be prepared for construction works, construction works are actually required, and housing construction projects are not actually conducted.

However, there is no evidence to find that the Plaintiff was preparing and managing the instant land in accordance with the business plan before the commencement of the construction after obtaining approval of the business plan, or that the instant land was performing the function as a site for the construction of the housing, and therefore, it cannot be viewed as a "land subject to the separate taxation under the Local Tax Act and the Enforcement Decree of the same Act, which is a land subject to the separate taxation under the Local Tax Act

Furthermore, the following circumstances, which are acknowledged in addition to the above evidence and the overall purport of oral argument, are as follows: (i) the head ofCC classified the instant land into general aggregate taxation while imposing property tax on the instant land; (ii) it is difficult to deem that the aforementioned disposition constitutes a prior disposition on the instant tax assessment; and (iii) there is no evidence to deem that the said disposition is null and void as a matter of course; and (ii) whether the instant land is provided for a housing construction project can be clarified after the fact-finding is investigated; and (iii) the BB head of the tax office did not have any evidence to deem that the current status of the use of the instant land was known or easily known in the process of making the instant tax assessment (the comprehensive real estate holding tax was converted from the previous tax payment method); and (iii) the head of the tax office having the authority to impose comprehensive real estate holding tax under the Comprehensive Real Estate Holding Tax Act imposed comprehensive real estate holding tax on the basis of the data on the imposition of property tax for the pertinent year; and therefore, it is difficult to deem that the Plaintiff’s submission of the instant land to the instant tax office or the need to impose tax assessment.

Therefore, the plaintiff's assertion is without merit.

4. Conclusion

Then, the plaintiff's claim shall be dismissed for lack of reason, and the judgment of the court of first instance shall be delivered with this conclusion.

Therefore, the plaintiff's appeal is dismissed.