Where a member of a housing association has constructed an apartment under the name of the association with the contribution of each member of the housing association, and a registration of preservation of ownership has been made directly in the future of each member of the housing association, the effect of acquisition tax

Where a person liable to pay acquisition tax pursuant to Articles 104 and 105 of the Local Tax Act refers to a person who actually acquires an apartment building regardless of the name entered in the public register, and where a large number of persons jointly invest in an association and newly built a building permit under the name of the association, the original acquisitor of the building is not the association but the association members jointly invest, and thus, the original acquisitor of the building is an individual member of the association. In the event that an apartment building is constructed with the amount contributed by each member of the housing association and the registration of ownership preservation has been made directly in the future of each member, the actual acquisitor of the apartment building is an individual member of the association and the association, the owner of the building, is merely one process and means to achieve the purpose of the association members,

Articles 104 and 105 of the Local Tax Act

Freeboard and 155 others

Seoul Metropolitan Government

1. The defendant shall pay to the plaintiffs an amount of KRW 110,910,640 and an amount of KRW 5% per annum from February 8, 1991 to April 23, 1992, and an amount of KRW 30,000 per day from the next day to the date of full payment.

2. The costs of lawsuit shall be borne by the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties:

A. The plaintiffs listed in the table Nos. 1 through 150 of the plaintiffs' list, who work for each different workplace, established the treatment workplace housing association, the Korea Credit & Distribution Company housing association and the Korea Communications District Housing Association on March 1989 as shown in the annexed list of the plaintiffs' housing association, and authorized the establishment of the housing association from the defendant around March 1989. Accordingly, the above plaintiffs jointly determined the treatment workplace housing association (hereinafter the plaintiff association) among the above associations as project undertakers and building owners, and implemented the Construction of the Heavy Apartment Housing Association (hereinafter the "construction of this case"). The plaintiffs listed in the annexed list Nos. 151 through 156 of the plaintiff's list were sold to the housing association members among the 156 households of the Kudong apartment newly constructed by the construction of this case, and all the plaintiffs moved into the above apartment house under the name of the defendant on January 22, 199 after the completion of the construction of the construction of this case and obtained approval for use on January 16, 1996.

B. On February 7, 1991, the Defendant: (a) recognized that the Plaintiff’s association newly constructed the above apartment building with the instant construction project and acquired its ownership in the original condition; and (b) imposed acquisition tax amounting to KRW 110,910,640. In this case, the Plaintiffs asked the Defendant whether the Plaintiff association, which is only the project implementer and the building title holder, has the obligation to pay acquisition tax; (c) thereby, the Plaintiff association, the building owner, also has the obligation to pay acquisition tax; and

C. After doing so, the defendant again recognized that the plaintiffs acquired the above apartment house from the plaintiff association in the future, and imposed acquisition tax. The plaintiffs paid acquisition tax in the name of each individual.

2. Determination

The person liable to pay acquisition tax under Articles 104 and 105 of the Local Tax Act refers to a person who is in substance acquired regardless of the name in the public register. In the event that a large number of persons jointly invested in an association and newly constructed a building permit under the name of the association, the original acquisitor of the building is not the association but the association. Therefore, in the case where the original acquisitor of the apartment building in this case was constructed with the funds contributed by the individual of the plaintiffs and the registration of preservation of ownership has been made directly in the future of the plaintiffs, the actual acquisitor of the apartment in this case is the individual of the plaintiffs (it is reasonable to see that the plaintiffs who purchased the remaining part of the apartment in this case are in substance the same status as the plaintiffs who are members of the association). In the case of the duty to pay acquisition tax, the plaintiff association, the owner of the building, who is the owner of the building, is merely one process and room for achieving the purpose of the plaintiffs. Therefore, the defendant's disposition to impose acquisition tax on the plaintiff association, without any legal ground, shall be deemed null and void.

Therefore, the defendant has a duty to pay to the plaintiffs the amount of 110,910,640 won and damages for delay at the rate of 3/10,000 per day from February 8, 1991 to April 23, 1992, which is clearly recorded that the delivery date of a copy of the complaint of this case from February 8, 1991 to April 23, 1992 (the plaintiff shall be based on the rate of 3/10,000 per day as stipulated in Article 46 of the Local Tax Act and Article 39 of the Enforcement Decree of the same Act, but it shall not be applicable to the claim for restitution of unjust enrichment as mentioned in this case). Since it is within the limit of the rate stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the full payment date, the plaintiffs' claim of this case shall be accepted for the reasons of this case,

Judges Lee Dong-ok (Presiding Judge)