Article 105(1) of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010; hereinafter the same) provides that “acquisition tax shall be imposed on a person who has acquired real estate, vehicles, mechanical equipment, standing trees, aircraft, ships, mining rights, fishing rights, golf membership rights, riding club membership rights, condominium membership rights, condominium membership rights, or membership rights to use athletic facilities complex.” Article 110 Subparag. 1(a) provides that “The acquisition tax shall not be imposed on a person who has acquired trust property through a trust (limited to a trust under the Trust Act and accompanied by a trust registration) and transfers the trust property from a truster to a trustee.”

Real estate acquisition tax is not imposed on a person who acquires real estate by taking advantage of the fact that it is the transfer of goods and by taking advantage of the distribution tax that recognizes and imposes a tax-bearing force. “Acquisition of real estate” under Article 105(1) of the former Local Tax Act includes all cases of acquisition of real estate by taking advantage of the transfer of registration of ownership, regardless of whether the person who acquired the real estate acquires the ownership substantially complete (see, e.g., Supreme Court Decision 2005Du9491, Apr. 12, 2007). Article 110 Subparag. 1(a) of the former Local Tax Act provides that acquisition tax shall not be imposed on a person who acquired the trust property by reason of trust under the Trust Act, and it does not impose acquisition tax on the premise that it falls under “acquisition” under Article 105(1) of the former Local Tax Act.

Therefore, if a sales guarantee company entered into a trust contract for the guarantee of the sale of housing and received the land, which is a trust property, from the truster on the ground thereof, it constitutes “acquisition of real estate” as prescribed by Article 105(1) of the former Local Tax Act. After all, it cannot be deemed that the sales price is refunded to the buyer or that the trust property is sold to a third party due to the performance of the guarantee of the sale of housing. In this case, it cannot be deemed that acquisition tax is exempted on the acquisition of trust property based on the initial trust contract under Article 110 subparag. 1(a) of the former Local Tax Act.

In the same purport, the court below is just in holding that each of the dispositions of this case by the Defendants against whom acquisition tax, etc. was imposed is unlawful on the ground that the Housing and Urban Guarantee Corporation, the Plaintiff, acquired each of the lands of this case on the ground of housing sale trust agreement, and paid a refund to the buyers for the performance of housing sale guarantee. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)