[1] Whether acquisition tax liability is established when the remainder payment date under Article 73(1) of the Enforcement Decree of the Local Tax Act arrives, even if the acquisition by succession for value does not meet the substantial requirements for acquisition of ownership, such as payment of the price (negative)

[2] Where the tax amount reported and paid by a taxpayer constitutes unjust enrichment of the State or a local government, and the method of determining such amount

[3] The case reversing the judgment of the court below that the act of declaration, such as acquisition tax, etc., conducted to avoid additional dues according to the direction of the public official in charge, did not constitute abrupt invalidation without full payment of the balance and without actual acquisition of real estate

[1] Articles 29(1)1 and 105(2) of the Local Tax Act, Article 73(1) of the Enforcement Decree of the Local Tax Act / [2] Article 741 of the Civil Act, Article 120 of the Local Tax Act / [3] Article 741 of the Civil Act, Articles 29(1)1, 105(2), and 120 of the Local Tax Act, Article 73(1) of the Enforcement Decree of the Local Tax Act

[1] Supreme Court Decision 9Du5955 delivered on February 9, 2001 (Gong2001Sang, 663), Supreme Court Decision 2002Du5115 Delivered on October 23, 2003 (Gong2003Ha, 2266), Supreme Court Decision 2004Du6761 Delivered on June 30, 2006 (Gong2006Ha, 1439) / [2] Supreme Court Decision 99Da11618 Delivered on April 27, 2001 (Gong201Sang, 1244), Supreme Court Decision 2004Da64340 Delivered on January 13, 206 (Gong206Sang, 206; 2004Du636464, Jun. 26, 2006)

Plaintiff (Attorney Yang Chang-won et al., Counsel for the plaintiff-appellant)

Gyeonggi-do et al. (Law Firm Ilwon, Attorneys Choi Young-young, Counsel for the plaintiff-appellant)

Seoul Northern District Court Decision 2008Na4153 decided Nov. 12, 2008

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

The Supreme Court held that Article 29 (1) 1 of the Local Tax Act provides that "acquisition tax shall come into existence when it acquires an object of taxation." Article 105 (2) of the Local Tax Act provides that "An actual acquisition shall be deemed to have been 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 acquisition of real estate." Here, " de facto acquisition" refers to a case which does not meet the formalities for acquisition of ownership, such as registration, but meets the substantive requirements for acquisition of ownership, such as payment of the price. Therefore, in cases of onerous succession, even if the actual requirements for acquisition of ownership or transfer of ownership are not satisfied, it cannot be deemed that the obligation to pay acquisition tax comes into existence even if the remaining payment date of acquisition tax under Article 73 (1) of the Enforcement Decree of the Local Tax Act arrives at the same time as the determination of tax base and tax amount by the Supreme Court Decision 9Du595 Decided Feb. 9, 2001; 202Du515, etc.) is determined as a taxpayer’s specific tax return and tax base.

According to the reasoning of the judgment below, the court below held that since the plaintiff voluntarily reported acquisition tax, etc. on June 19, 2006, and it is unclear whether the plaintiff actually acquired the real estate of this case and the time of acquisition thereof, it shall be deemed that the plaintiff acquired the real estate of this case with compensation on the payment date of balance under the sales contract of this case pursuant to Article 73 (1) 2 of the Enforcement Decree of the Local Tax Act, and even if the plaintiff voluntarily reported acquisition tax, etc. to avoid additional charges in accordance with inducement of voluntary report by public officials in charge of the public officials in the Korea-gu Office of Population and Population, even though the plaintiff did not actually acquire the real estate of this case without full payment as alleged in the above, there was an objective circumstance for the plaintiff to voluntarily report acquisition tax, etc., and it can only be viewed that the plaintiff could only be seen that the plaintiff's act of report, such as acquisition tax, etc., including the plaintiff's acquisition tax, constitutes an unlawful interpretation of Article 73 (1) 2 of the Enforcement Decree of the Local Tax Act.

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

Justices Kim Nung-hwan (Presiding Justice)