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

The Defendant’s imposition of comprehensive real estate holding tax for the year 2005 by KRW 851,420,860 and special rural development tax for the year 2005, respectively, shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

The reasoning of the judgment of this court is as follows. The defendant's assertion that the court of first instance had been made in this court is consistent with the reasoning of the judgment of the court of first instance, except for the addition of the judgment as set forth in paragraph (2) below, and therefore, it is consistent with Article 8 (2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

In light of the above provisions and the legal principles, the following circumstances are comprehensively taken into account: (i) the instant real estate was acquired in the name of the 134th regional housing association, a telegraphic body of the Plaintiff; and (ii) the Plaintiff completed the registration of ownership modification in the name of the Plaintiff on November 19, 2010; (iii) the Plaintiff, the implementer of the instant project, newly constructed a house on the basis of money invested by the members, real estate acquired from the members, and real estate acquired from the real estate, and then reverted the land to the members; and (iv) the Plaintiff was dissolved after the occupancy and registration procedure were completed; and (iii) the Plaintiff’s real estate and real estate acquired from the Plaintiff association were ultimately entrusted to the Plaintiff association; and (iv) the Plaintiff’s real estate acquired from the Plaintiff association was not subject to the Plaintiff association’s trust agreement, and the real estate acquired from the Plaintiff association was not subject to the Plaintiff association’s trust agreement.

Therefore, the disposition of this case, based on the premise that the Plaintiff is liable to pay comprehensive real estate holding tax as a substantial owner of the instant real estate, is unlawful.

2. Additional determination

A. The defendant's assertion

1) Article 183(2) of the Local Tax Act (amended by Act No. 7678 of Aug. 4, 2005; hereinafter the same) provides that exceptions to the principle of substantial taxation shall take precedence over the principle of substantial taxation under Article 183(1). Since the exception provisions are not applicable because the registration of trust under the Trust Act as of the tax base date of comprehensive real estate holding tax is not applied, the truster’s members cannot be deemed as a person liable for payment. Since trust registration made after the tax base date cannot be deemed as a retroactive effect that the registration of trust was listed as the tax base date, the disposition of this case, which the Defendant deemed that the Plaintiff was liable

2) Since real estate purchased with money in trust with the original money does not constitute trust property, real estate purchased with money under the substance over form principle should be excluded from trust property and subject to comprehensive real estate holding tax on the Plaintiff.

B. Determination

In light of the following circumstances, in which the relevant provisions and the purport of the entire pleadings are recognized, the above argument by the defendant cannot be accepted in entirety, and there is no evidence to acknowledge that the disposition of this case by the defendant is legitimate.

1) In light of the fact that Article 183(2) of the Local Tax Act provides, “Notwithstanding paragraph (1) of this Article,” it is reasonable to deem that Paragraph (2) is an exception to Paragraph (1) that the substance over form principle provides for the substance over form principle. However, as of June 1, 2005, since there is no dispute between the parties as to the fact that the registration of trust under the name of the Plaintiff was not completed as of June 1, 2005, Article 183(2)5 of the Local Tax Act, which is an exception to Paragraph (1) that provides for the substance over form principle, does not apply to this case. If the above exception provision does not apply to this case, it should be again determined again whether the substantial owner of the real estate of this case, which was determined in accordance with the substance over form principle, is the Plaintiff’s member. Therefore, the Plaintiff’s assertion that the Plaintiff, the trustee of the Plaintiff, is the Defendant, should not accept immediately.

2) If the ownership of a house newly built through the instant project ultimately belongs to the members of the association, the money invested by the members of the association can be deemed as having been in fact entrusted to the Plaintiff association. The instant real estate acquired with money trusted to the Plaintiff association can also be deemed as the property trusted to the Plaintiff association. Article 110 Subparag. 1 of the Local Tax Act, which is a provision on trust property exempt from acquisition tax, excludes the acquisition of trust property between the housing association and the members under the proviso of Article 32 of the Housing Act, and Article 105(10) of the Local Tax Act provides for the person liable to pay acquisition tax, and Article 32 of the Housing Act provides that the association, housing association, and real estate for housing (referring to multi-family housing, incidental and welfare facilities) acquired by the housing association for its members shall be deemed to have been acquired by the association members of the Plaintiff association. In light of the above, it is reasonable to deem that the real estate acquired with money first entrusted from the members of the association falls under the trust property of the Plaintiff association.

3. Conclusion

Therefore, the judgment of the first instance court is just, and the defendant's appeal is dismissed as it is without merit.

Judges Kim Jong-chul (Presiding Judge)