1. Article 105(2) of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010; hereinafter the same) provides that acquisition of real estate shall be deemed to have been acquired when it is actually acquired even if it fails to comply with registration, etc. under the provisions of relevant Acts and subordinate statutes, such as the Civil Act, with respect to the acquisition of real estate. Here, “ de facto acquisition” refers to a case where: (a) it fails to meet the formal requirements for acquisition of ownership, such as registration; but (b) it satisfies the substantive requirements for acquisition of ownership, such as the payment of the price (see, e.g., Supreme Court Decision 9Du5955, Feb. 9, 2001). Meanwhile, where a sales contract was concluded on the premise that permission for land within a land transaction contract permission zone under the National Land Planning and Utilization Act is granted and the payment of the price is not effective as a complete legal act until the permission for the sales contract was granted, but if the land was cancelled after the permission zone for the sale contract becomes retroactively effective.

2. The lower court: (a) concluded a sales contract with the content that he purchases 196,360.9 square meters of land located within the land transaction contract permission zone for the purpose of promoting the Jung-dong Urban Development Project; (b) paid to the seller totaling KRW 177,107,748,105 of the remainder from December 29, 2006 to April 19, 2007; (c) the Plaintiff acquired 37,740 shares of 74,740 shares of 51% of the outstanding shares of So-gu; and (d) the Plaintiff acquired 22,260 shares of October 9, 207 to obtain 60,00 shares of 81.0 shares of the instant land; and (e) obtained the permission for the remaining part of the instant land transaction contract from December 29, 207 to April 19, 200; and (e) recognized the fact that the Plaintiff acquired 37,740 shares of 51% of the instant land.

The court below held that the disposition of this case, based on the above facts, that the plaintiff, who is an oligopolistic shareholder of Mai-si City, additionally acquired 22,260 shares on October 7, 2007 pursuant to Article 105 (6) of the former Local Tax Act, shall be deemed to have acquired the increased share ratio of 30.08% among the land of this case where Mai-si City completed the payment of the remainder, and that acquisition tax, etc. was imposed and notified on the plaintiff, on the land of this case, and on the grounds stated in its reasoning, the Mai-si shall be deemed to have acquired the land of this case on October 9, 207, which was after the date when the plaintiff additionally acquired shares, and as such, Article 105 (6) of the former Local Tax Act does not apply to the acquisition of the land of this case on January 209, 209.

3. However, in light of the legal principles as seen earlier, in imposing acquisition tax upon acquiring the instant land, the time of acquisition shall be deemed to have been the date on which Yok City paid the outstanding purchase price. Therefore, it shall be deemed that the Plaintiff, an oligopolistic stockholder of Yok City, a corporation, has already acquired 2,260 shares of the shares issued by Yok City as of October 7, 2007, additionally acquired 22,260 shares of the shares issued by Yok City.

Nevertheless, the lower court determined that the acquisition of the instant land by the oligopolistic shareholder is not applicable to Article 105(6) of the former Local Tax Act on the ground that the Plaintiff, a oligopolistic shareholder, should be deemed to have acquired the instant land after additionally acquiring the shares issued by the YU city. In so doing, the lower court erred by misapprehending the legal doctrine on the time of acquisition in acquisition of the land within the land transaction contract zone, and thereby adversely affected the judgment. The allegation contained in the grounds of appeal pointing this out is with merit, and thus, the lower judgment cannot be reversed without further proceeding to decide on the remainder of the grounds of appeal.

4. The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)