[취득세부과처분무효확인][공1994.10.15.(978),2661]
(a) A person liable to pay acquisition tax due to new construction of an association house;
(b) The case holding that acquisition tax imposed on a housing association with respect to new construction and acquisition of a partnership apartment shall not be void as it is not clear even if such defects are serious;
A. A housing association does not construct and sell a new building for its owner at its own expense, but rather constructs a building with the building fund to be borne by its members in accordance with the process. Thus, barring special circumstances, barring special circumstances, even if the building permit and completion inspection was conducted under the name of the association for the convenience of the construction procedure, the ownership of the building (if sold to the general public among the housing of the association, the ownership of the building should be viewed as the original acquisition by the association members, who are the provider of the building fund, and thus, the taxpayer of acquisition tax due to the new construction of the association is the association members.
B. The case holding that even if the defect is significant in the disposition imposing acquisition tax against the housing association with respect to the new construction of a partnership apartment, it cannot be deemed that the defect is not necessarily deemed to be an obvious, on the ground that it is difficult to view that the disposition imposing acquisition tax as a matter of course is null and void, in light of the fact that the housing association members were the project undertaker who obtained approval for the project plan in the construction of a partnership apartment and obtained approval for the use in their name.
Article 104 subparagraph 8 of the Local Tax Act; Article 105 (2) of the former Local Tax Act; Article 19 of the Administrative Litigation Act
A. Supreme Court Decision 93Nu18839 delivered on June 24, 1994 (Gong1994Ha, 2139)
Korea Electric Power Corporation and 12 others, Counsel for defendant-appellant-appellee
Attorney Go Il-su, Counsel for the head of Jung-gu Seoul Metropolitan Government
Seoul High Court Decision 92Gu29209 delivered on June 9, 1993
All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.
We examine the grounds of appeal.
1. According to the reasoning of the judgment below, the plaintiffs were a housing association which obtained authorization for establishment pursuant to the Housing Construction Promotion Act, and constructed apartment 704 households and welfare facilities (it appears that the two roads and kindergartens, and incidental facilities of the judgment below appear to be erroneous) on the ground above 42 lots outside Seoul Jung-gu, Seoul, and obtained approval for use on March 13, 1992 and sold 654 households among its members to the association members. The above members paid acquisition tax on an apartment that they purchased on April 13, 1992, and the defendant acquired the above site, constructed apartment and welfare facilities on that ground, and acquired them, and the plaintiffs paid only acquisition tax corresponding to the above portion on that ground. The plaintiffs asserted that the part of the housing association was invalid as a result of imposition of acquisition tax on the non-taxation of the housing association (it is unlawful for the court below to hold that the housing association was subject to imposition of acquisition tax on the non-taxation or non-taxation of the housing association, as long as the housing association did not acquire it in form or non-taxation of the housing association.
However, even if the defects of the defendant's disposition of this case were significant, it cannot be deemed that the defect is apparent, considering the fact that the plaintiffs were the business entity who obtained approval of the project plan in the construction of the partnership apartment of this case, and there were objective circumstances to mislead the acquisition entity, such as the fact that the approval of the use was obtained in its name. Thus, the defendant's disposition of this case cannot be deemed as null and void as a matter of course.
Therefore, the conclusion of the court below's rejection of the plaintiffs' claim to nullify the disposition of this case is just, and the arguments are not justified.
3. 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.
Justices Ahn Yong-sik (Presiding Justice)