In a case where a sectionally owned co-ownership relationship is established with respect to the houses which have a structure by which each household can carry on an independent residential life within one building and which can be the objects of independent transactions in light of social norms, the criteria for determining whether the acquisition tax reduction rate under Article 40-2 of the former Restriction of Special Local Taxation Act and the special rural development tax under Article 4 subparagraph 9 of the former Act on Special

The legislative intent of Article 40-2 of the former Restriction of Special Local Taxation Act (amended by Act No. 11138, Dec. 31, 201; hereinafter the same shall apply) or Article 4 subparagraph 9 of the former Act on Special Rural Development (amended by Act No. 11127, Dec. 31, 201; hereinafter the same shall apply) is to determine whether all ordinary people’s houses are bound by the provisions of the Building Act, etc. in light of the legislative intent of the Act from an independent perspective of tax-related Acts, rather than to determine whether the provisions vary between acquisition tax reduction rate and non-taxation rate based on a house with less than 90 million won acquired value and a house with common people’s houses below national housing with an independent residential life, and whether the Enforcement Decree of the Local Tax Act provides for separate ownership of each house with an independent residential building under Article 13 of the former Enforcement Decree of the Local Tax Act (see Article 13 of the Enforcement Decree of the Local Tax Act) and one house with an independent residential development tax under the Act.

Article 40-2 of the former Restriction of Special Local Taxation Act (Amended by Act No. 11138, Dec. 31, 201); Article 4 subparagraph 9 of the former Act on Special Rural Development (Amended by Act No. 11127, Dec. 31, 201); Article 4 (4) of the former Enforcement Decree of the Act on Special Rural Development (Amended by Presidential Decree No. 23603, Feb. 2, 2012); Article 2 subparagraph 3 of the former Housing Act (Amended by Act No. 11061, Sep. 16, 201); Articles 13 and 112 of the Enforcement Decree of the Local Tax Act

Supreme Court en banc Decision 92Nu15994 delivered on August 24, 1993 (Gong1993Ha, 2656)

Plaintiff

The head of Jongno-gu Seoul Metropolitan Government (Court Law Firm Corporation, Attorneys Lee Jin-in et al., Counsel for defendant-appellant)

Seoul High Court Decision 2012Nu34244 decided April 12, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

If two or more persons agree to divide ownership among one building, the location and area of which are specified and independent in structure and use, and the registration is made in proportion to the area of each sectional ownership for convenience, the so-called sectionally owned co-ownership relation between co-owners constitutes the so-called sectionally owned co-ownership relation. Since the acquisition of ownership by winning a contract by nature is an acquisition by succession, the right to collateral security for co-ownership with the purpose of co-ownership indicating the sectionally owned co-ownership relation of the specific part of one building is established and the successful bidder who acquired co-ownership by the execution of the right to collateral security (see Supreme Court Order 200Ma2633, Jun. 15, 2001, etc.) acquires co-ownership share as it is by sectionally owned ownership (

In full view of the adopted evidence, the lower court determined that: (a) the instant housing was on the top of a wooden machine and a Korean-style house, with a floor, gate, and several rooms installed in the form of Mail, centering on Mail; (b) the instant housing was constructed at the end of 1954 and became a state-owned property in the form of ownership in order to transfer ownership to Nonparty 1, etc.; (c) the Plaintiff acquired Nonparty 2’s share in the auction procedure; and (d) there was a room in which the oil boiler and a Korean-style Korean-style army was installed; and (d) there was an entrance outside the part acquired by other owners, other than the Plaintiff, to have access to the said housing; and (d) there was a separate room for access to heating and water supply system, and independent residence of several households in the instant housing; and (d) there was a specific fact that equity right holders, including the Plaintiff, own divided ownership corresponding to the instant housing portion.

In light of the above legal principles and records, the fact-finding and judgment of the court below are justified, and there is no error in the misapprehension of legal principles as to sectional ownership sharing relation as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

Article 40-2 of the former Restriction of Special Local Taxation Act (amended by Act No. 11138, Dec. 31, 201; hereinafter the same shall apply) provides, “Where a house, the value of which at the time of acquisition under Article 10 of the Local Tax Act is not more than 90 million won due to floating transactions, falls under any of the following cases, 75/100 of the acquisition tax calculated by applying the tax rate under Article 11(1)7 (b) of the same Act shall be reduced, and where a house exceeding 90 million won is acquired or a house is acquired and becomes a multi-household other than subparagraph 2, 50/100 of the acquisition tax calculated by applying the tax rate under Article 11(1)7 (b) of the same Act shall be reduced.” Article 40-2 of the same Act provides, “Where a house becomes a single house” under subparagraph 1, and subparagraph 2 provides, “where a house becomes a temporary house becomes two houses prescribed by Presidential Decree”, respectively:

Meanwhile, Article 4 Subparag. 9 of the former Act on Special Rural Development (amended by Act No. 11127, Dec. 31, 2011; hereinafter the same shall apply) provides that no special rural development tax shall be imposed in cases of “the reduction or exemption of acquisition tax or registration license tax on houses owned by ordinary people prescribed by Presidential Decree.” Article 4(4) of the former Enforcement Decree of the Act on Special Rural Development Tax (amended by Presidential Decree No. 23603, Feb. 2, 2012; hereinafter the same shall apply) provides that “public housing prescribed by Presidential Decree” means a residential building and its appurtenant thereto, whose residential area is less than the national housing size under subparagraph 3 of Article 2 of the Housing Act (in cases of multi-family houses under subparagraph 1 (c) of attached Table 1 of the Enforcement Decree of the Building Act, based on the exclusive use area per household) and the land which is used for the residential area (referring to the floor area partitioned by one household independently in cases of apartment houses, etc.) or the urban area per residential area (hereinafter referred to “16”).

Article 40-2 of the former Restriction of Special Local Taxation Act or “house owned by ordinary people” under Article 4 subparag. 9 of the former Act on Special Rural Development does not necessarily mean a unique concept under tax law, which is bound by the provisions of the Building Act, etc., and should be determined in light of its legislative purport from an independent perspective (see Supreme Court en banc Decision 92Nu15994, Aug. 24, 1993). The legislative purport of these provisions vary between acquisition tax reduction rate and non-taxation rate for houses below 90 million won and low-income houses below national housing size. The legislative purport of this provision is to grant tax benefits to houses whose residential life can be operated independently by one household and smaller than a certain size. In principle, acquisition tax is to be imposed according to the actual status of the Enforcement Decree of the Local Tax Act (see Article 13 of the Enforcement Decree of the Local Tax Act), and the Enforcement Decree of the Local Tax Act provides that the area of the house owned by each household can be separated from the area of the house owned by one household under the former Enforcement Decree of the Local Tax Act.

In the same purport, the court below is just in holding that the acquisition tax reduction rate and the special tax for rural development should be determined on the basis of the acquisition price and the exclusive residential area for the specific portion acquired, not the entire house, in a case where the specific portion of the house in the sectionally owned co-ownership relation is acquired, and there is no error in the misapprehension of legal principles as to Article 40-2 of the former Restriction of Special Local Taxation Act

3. Conclusion

Therefore, the appeal is 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 Kim So-young (Presiding Justice)