[취득세등부과처분취소][공2002.9.1.(161),1978]
The meaning of "acquisition of real estate" under Article 105 (1) and (2) of the former Local Tax Act and "acquisition of real estate", and whether it constitutes "acquisition of real estate or actual acquisition of real estate" in cases where the registration of ownership transfer was not completed after a favorable judgment was rendered in a lawsuit claiming the registration of ownership transfer due to the cancellation of title trust, or where the registration of ownership transfer was not completed due to the cancellation of title trust (negative)
The "acquisition of real estate" under Article 105 (1) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994) includes all cases of the acquisition of real estate in the form of transfer of ownership, and thus falls under the case of the completion of the registration of ownership transfer due to the registration of ownership transfer due to the cancellation of title trust or the cancellation of title trust. The "actual acquisition" under Article 105 (2) refers to the acquisition of ownership although it does not meet the formal requirements for the acquisition of ownership (registration and registration) but meets the substantial requirements for the acquisition of ownership. Thus, if a lawsuit demanding the registration of ownership transfer due to the termination of title trust relation or the cancellation of title trust has not completed the registration of ownership transfer due to the cancellation of title trust, the "acquisition of real estate" under Article 105 (1) of the same Act does not fall under the "acquisition of real estate" under Article 105 (2) of the same Act.
Article 105(1) and (2) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994)
Taewon Housing Co., Ltd. (Attorney Tae Jae-won, Counsel for the plaintiff-appellant)
The head of Gangseo-gu Seoul Metropolitan Government (Law Firm Freedom, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant
Seoul High Court Decision 2000Nu3711 delivered on October 19, 2000
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. On the first ground for appeal
Examining the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below in light of the records, the court below acknowledged the facts as stated in its holding, and it is just to determine that the plaintiff merely purchased the real estate of this case on behalf of a regional housing association and registered housing association, not a title trust relationship between the association and the workplace housing association, but a title trust relationship with the workplace housing association on the share of the real estate of this case.
The grounds of appeal disputing this issue are rejected.
2. On the second ground for appeal
According to the reasoning of the judgment below, the court below determined that the Plaintiff’s registration of ownership can be completed at any time as a taxable object of acquisition tax, regardless of whether the registration of ownership transfer has been completed, inasmuch as the Plaintiff filed a claim for ownership transfer registration against the workplace housing association that is a title trustee due to the termination of title trust, and a part of the workplace housing association accepted the claim, and that the remaining workplace
However, "acquisition of real estate" under Article 105 (1) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994; hereinafter the same) includes all cases of acquisition of real estate in the form of transfer of ownership, and the registration of ownership transfer due to the transfer of title or the termination of title trust falls under the case (see Supreme Court Decisions 89Nu3489, Mar. 9, 1990; 91Nu11, May 12, 1992; 91Nu1041, May 12, 1992; hereinafter the same shall apply). The term "real acquisition" under Article 105 (1) of the former Local Tax Act refers to the acquisition of real estate which does not meet the formal requirements for acquisition of ownership, but satisfies the substantial requirements for acquisition of ownership (see, e.g., Supreme Court Decision 92Nu16843, Sept. 28, 1993).
However, if the title trust relation is terminated or the registration of ownership transfer is not completed due to a favorable judgment in the lawsuit claiming the registration of ownership transfer based on the cancellation of the title trust, not only does it constitute the "acquisition of real estate" under Article 105 (1) of the same Act, but also it cannot be deemed that it satisfies the substantial requirements for the acquisition of ownership, and therefore, it cannot be said that the " de facto acquisition" under Article 105 (2) of the same Act
Nevertheless, the lower court determined otherwise by misapprehending the legal doctrine on acquisition under the Acquisition Tax Act, thereby adversely affecting the conclusion of the judgment, which affected the conclusion of the judgment.
The part of the grounds of appeal assigning this error is with merit.
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Jae-sik (Presiding Justice)