(a) Whether a heavy registration tax is imposed on the real estate registration for the acquisition by succession of a factory in a large city (negative);

B. The validity of taxation disposition that misleads the legal relation or factual basis subject to taxation

The succession and acquisition of a factory in a large city is not a real estate registration due to the establishment or extension of a factory in a large city under Article 138 (1) 4 of the former Local Tax Act (amended by Act No. 3488, Dec. 31, 1981); and Article 138 (1) 3 of the same Act is interpreted as a heavy taxation provision on general real estate registration except for a factory.

B. The taxation disposition on a person who does not have any legal relation or factual relations subject to taxation is significant and apparent, but in a case where the legal relation or factual relations which are subject to taxation are misleading and the tax is imposed, the said taxation disposition can only be revoked.

A. Article 138(1) of the former Local Tax Act (amended by Act No. 3488, Dec. 31, 1981); Articles 102(3) and 84-2(1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 10663, Dec. 31, 1981); Article 19 of the Administrative Litigation Act

A. Supreme Court Decision 81Nu33 delivered on February 28, 1984; 84Nu256 delivered on February 25, 1986; 81Nu69 delivered on October 26, 1982

[Defendant-Appellee] Plaintiff 1 and 3 others

Attorney Lee Ho-ho, Counsel for the defendant-appellant of Incheon Metropolitan City

Seoul High Court Decision 87Na1921 delivered on August 21, 1987

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

With respect to No. 1:

Article 138 (1) 4 of the former Local Tax Act (amended by Act No. 3488 of Dec. 31, 1981; hereinafter the same) and Article 138 (1) 3 of the same Act provide that an heavy taxation on the real estate registration following the establishment or extension of a factory in a large city. Thus, Article 102 (3) and 84-2 (2) 3 of the same Act provides that it is reasonable to interpret that a heavy taxation on the general real estate registration other than a factory is imposed on the real estate registration following the establishment and establishment of a corporation and the establishment of a branch office or a branch office in a large city and the relocation of a corporation into a main office, a branch office or a branch office in a large city (see, e.g., Supreme Court Decision 81Nu333, Feb. 28, 1984). Therefore, the decision of the court below to the effect that the new establishment of a factory in this case does not constitute a new one in a large city or a new factory in a large city.

With respect to the second ground:

According to the reasoning of the judgment below, the court below recognized that the business chemical and industrial partnership company (hereinafter "non-party company") changed its organization to a stock company, but it is not allowed to change its organization from the unlimited partnership company under the Commercial Act to the non-party company. Thus, the non-party company was dissolved and the non-party company was decided to change its organization to the non-party company by transferring all assets, human resources, and physical facilities and thereby accomplishing the same purpose, and entered into a contract for transfer and takeover between the non-party company and the non-party company, and completed the registration of transfer in the name of the plaintiff company with respect to the factory, etc. of this case after completing the registration of transfer in the name of the non-party company. The defendant additionally collected the registration tax and defense tax other than the registration tax imposed on August 17, 1983 by applying the general tax rate, on the ground that the factory of this case is subject to the non-party company's voluntary taxation, but it is not subject to the imposition of the registration tax as seen above.

However, even if the plaintiff paid the registration tax by applying the general tax rate, if the defendant, who is the tax authority, is deemed to be subject to heavy taxation of the registration tax, he can collect the registration tax, etc., if it is deemed that the defendant becomes subject to heavy taxation of the registration tax, and further, the tax disposition imposed on the person who does not have any legal relation or fact which is subject to heavy taxation of the registration tax, is significant and obvious, but if the tax is imposed by misunderstanding the legal relation or fact relevance of the subject of heavy taxation and the tax is imposed, such tax disposition cannot be deemed to be null and void as a matter of course and only can be revoked (see Supreme Court Decision 81Nu69, Oct. 26, 1982).

Therefore, the judgment of the court below is erroneous in the misunderstanding of legal principles as to the invalidation of taxation as a matter of course, and this is affected by the judgment.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ansan-man (Presiding Justice)