[부당이득금][공1995.3.1.(987),1140]
(a) Even if a building permit and completion inspection have been received in the name of the housing association, whether the association members, the provider of the building fund, have original acquisition or not;
(b) In the case of paragraph (a), the case where it is difficult to deem that a disposition of imposing acquisition tax by the tax authority against a housing association is void as a matter of course;
A. A housing association is not to newly construct and sell a building with its owner money, but to construct a building fund to be borne by each member in accordance with the process. Thus, barring special circumstances, even if a building permit and completion inspection was conducted in the name of the association for the convenience of the construction procedure, barring special circumstances, the ownership of the building (if sold to the general public among the housing units 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, for the convenience of the construction procedure.
B. The case holding that even if the tax authority imposed acquisition tax on a housing association such as "A" and the defect in the disposition of imposition is significant, considering the fact that the housing association was a business entity who obtained approval of the project plan in the construction of the apartment of the association and there were objective circumstances to mislead the acquisition entity by obtaining the approval of the provisional use in its name, it cannot be deemed that the defect is apparent, and it cannot be deemed that the above disposition of taxation by the tax authority is null and void as a matter of course.
Article 187 of the Civil Act; Article 104 subparag. 8 of the Local Tax Act; Article 105(2) of the former Local Tax Act (amended by Act No. 4561 of Jun. 11, 1993); Article 19 of the Administrative Litigation Act
(a) Supreme Court Decision 93Nu16369 delivered on September 9, 1994 (Gong1994Ha, 2661). Supreme Court Decision 93Nu18839 delivered on June 24, 1994 (Gong1994Ha, 2139)
Attorney Song-sik et al., Counsel for the defendant-appellant-appellee et al., Counsel for the defendant-appellant-appellee
Dongyang General Law Firm, Attorneys Kim Sung-gi et al., Counsel for the defendant-appellant
Seoul High Court Decision 93Na37245 delivered on August 23, 1994
The part of the lower judgment against the Defendant shall be reversed.
This part of the case is remanded to the Seoul High Court.
We examine the grounds of appeal.
(1) Under the Housing Construction Promotion Act, the plaintiffs are housing associations established with the authorization of establishment from the head of each competent Gu for the construction of apartment houses of the members of the association. The plaintiffs jointly constructed the apartment of this case after obtaining the approval of the housing construction project plan of this case from the head of Dobong-gu Seoul Metropolitan Government and let the members of the association of this case use the apartment of this case after obtaining the approval of the provisional approval from the head of Dobong-gu Seoul Metropolitan Government. Accordingly, the head of Dobong-gu Seoul Metropolitan Government notified the plaintiffs of the fact that the plaintiffs constructed and acquired the apartment of this case at the time when the above provisional approval was obtained the above provisional approval, and that the plaintiffs were notified of the payment of acquisition tax amount of KRW 173,291,100. The plaintiffs paid it to the head of Dobong-gu and 192 members of the association were already reported and paid acquisition tax amount of KRW 59,404,800 in total with acquisition tax amount of KRW 309,400.
(2) A housing association is not to newly construct and sell a building with its owner money, but to construct a 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 in the name of the association for the convenience of the construction procedure, the ownership of the above building (if sold to the general public among the housing units of the association, the ownership of the above building should be excluded from the part and welfare facilities) shall be deemed to have been acquired at the original time by its members (see, e.g., Supreme Court Decisions 93Nu1639, Sept. 9, 1994; 93Nu1839, Jun. 24, 1994; 93Nu1839, Jun. 24, 1994). It is justifiable in the judgment of the court below to the effect that the court below erred the legal principles
However, even if the defects of the defendant's disposition of this case were significant, it cannot be deemed that the defects exist in considering the fact that the plaintiffs were the business entity who obtained approval of the business plan in the construction of the partnership apartment of this case, and there are objective circumstances to mislead the acquisition entity, such as the fact that the plaintiffs obtained approval of the provisional use in their name, and thus, it cannot be deemed that the defendant's disposition of this case is null and void as a matter of course (see Supreme Court Decision 93Nu16369 delivered on the party members). Nevertheless, the decision of the court below that the disposition of this case is null and void as a matter of course cannot be deemed to be erroneous in the misapprehension of the legal principles as to the invalidation of an administrative disposition as a matter of course.
(3) Therefore, the part of the judgment of the court below against the defendant's failure shall be reversed, and this part of the case shall be remanded to the court below. It is decided as per Disposition by the assent
Justices Lee Don-hee (Presiding Justice)