[1] In a case where real estate acquired for direct use by a company-affiliated research institute fails to establish a company-affiliated research institute under Article 228 of the former Enforcement Decree of the Local Tax Act, whether it is subject to exemption from acquisition tax, etc. under the main sentence of Article 282 of the former Local Tax Act (affirmative), and whether the disposition of imposition at this time is separate from the disposition of additional collection under the proviso of Article 28

[2] In a case where a sales contract for real estate was concluded and the sales price was fully paid, but the sales contract was rescinded before the registration of ownership transfer was not completed and the real estate was returned, whether it affects the exercise of the existing tax claim (negative)

[1] In light of the language and structure of Article 282 of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010) and Article 228 (wholly amended by Presidential Decree No. 22395, Sept. 20, 2010) of the former Enforcement Decree of the Local Tax Act (wholly amended by Presidential Decree No. 22395, Feb. 20, 2010), the establishment of a company-affiliated research institute is essential to realize the legislative intent of the instant legal provision to promote high technological innovation by encouraging the research of science and technology of the company, it is reasonable to view the instant legal provision as establishing a company-affiliated research institute as an ex post facto requirement to be exempted from acquisition tax, etc. under the main sentence of the instant legal provision, and even if a company-affiliated research institute fails to establish a company-affiliated research institute for direct use, it is subject to exemption from acquisition tax, etc. under the proviso to the instant legal provision from the first imposition of acquisition tax, etc.

[2] Article 105(2) of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010; hereinafter the same) provides that real estate acquisition tax shall be subject to taxation regardless of whether the acquisitor acquires the ownership of the substance substantially complete, as a kind of distribution tax, based on the fact that it is the transfer of the original goods, and imposes a recognition and imposition of the capacity to pay taxes. Article 73(1) of the former Enforcement Decree of the Local Tax Act (wholly amended by Presidential Decree No. 22395, Sep. 20, 2010; hereinafter the same) provides that acquisition tax shall be subject to taxation regardless of whether the acquisitor acquires the ownership of the substance completely complete, and Article 105(2) of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010; hereinafter the same) actually acquires the real property subject to acquisition tax even if it does not comply with registration under the Civil Act and other relevant Acts and subordinate statutes.

[1] Article 282 (see current Article 46 of the Restriction of Special Local Taxation Act) of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010); Article 228 (see current Article 23 of the Enforcement Decree of the Restriction of Special Local Taxation Act) of the former Enforcement Decree of the Local Tax Act (wholly amended by Presidential Decree No. 22395, Sep. 20, 2010) / [2] Article 105 (2) (see current Article 7 (2)) of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010); Article 73 (1) (see current Article 20 (2)) of the former Enforcement Decree of the Local Tax Act (wholly amended by Presidential Decree No. 22395, Sep. 20, 2010)

[2] Supreme Court Decision 98Du14228 delivered on December 8, 1998 (Gong199Sang, 167)

CoCo., Ltd. and 8 others (Law Firm Dcaro temperature, Attorneys Seo Jong-ho et al., Counsel for the plaintiff-appellant)

The head of Sungnam-si Subdivision

Seoul High Court Decision 2011Nu7511 decided October 5, 2011

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

Article 282 of the former Local Tax Act (wholly amended by Act No. 1021, Mar. 31, 2010; hereinafter the same) (hereinafter “instant legal provision”) provides that “any real estate acquired to use directly for any research institute affiliated with a company prescribed by the Presidential Decree shall be exempted from acquisition tax and registration tax,” and Article 228 (Enforcement Decree of the former Local Tax Act (wholly amended by Presidential Decree No. 22395, Sept. 20, 2010; hereinafter the same) delegated by the former Local Tax Act (wholly amended by Presidential Decree No. 22395, Sept. 20, 2010; hereinafter the “Enforcement Decree of the instant case”) provides that “any research institute equipped with the standards under Article 7(1)2 of the Technology Development Promotion Act (wholly amended by Act No. 10221, Mar. 31, 2010; hereinafter the same shall apply)” shall be collected from the Minister of Education, Science and Technology for any other purpose.”

In light of the language and structure of these regulations, and the legislative intent of the provision of this case, which seeks to achieve advanced technological innovation by encouraging corporate scientific and technological research, it is necessary to establish a company-affiliated research institute. Thus, it is reasonable to deem that the provision of this case prescribed the establishment of a company-affiliated research institute as an ex post requirement to be exempted from acquisition tax, etc. under the main sentence of the provision of this case and the standards for its human and material facilities. Thus, even if a company-affiliated research institute was acquired for direct use, if a company-affiliated research institute fails to establish a company-affiliated research institute under the main sentence of the provision of this case, it is imposed as a principle by excluding the company-affiliated research institute subject to exemption from acquisition tax, etc. under the main sentence of the provision of this case from the beginning. In this case

In the same purport, the lower court is justifiable to have determined that the establishment requirement of a company-affiliated research institute under the Enforcement Decree of the instant case should be satisfied in order to be exempted from acquisition tax, etc. under the main sentence of the instant legal provision, and there is no error of law by misapprehending the legal principles as to the requirements for exemption from acquisition tax, etc

2. Regarding ground of appeal No. 3

A. Real estate acquisition tax is subject to taxation regardless of whether the acquisitor acquires the ownership substantially complete, regardless of whether the acquisitor acquires the profit from using, earning, or disposing of the goods by taking advantage of the fact that the transfer of the original goods is the transfer of the goods. Article 105(2) of the former Local Tax Act provides that the acquisition of the real estate subject to acquisition tax shall be deemed to have been acquired when it is actually acquired even if the purchaser fails to comply with registration, etc. under the Civil Act and other related Acts and subordinate statutes. Article 73(1) of the former Enforcement Decree of the Local Tax Act provides that the acquisition by succession shall be deemed to have been based on the principle of actual payment date, etc. In the case of onerous acquisition by delegation of Article 111(7) of the former Local Tax Act, Article 73(1) of the former Enforcement Decree of the Local Tax Act provides that the actual acquisition by succession shall be deemed to have been based on the existence of the acquisition tax subject to taxation even if all of the sales proceeds have not been paid upon completion of the registration of ownership transfer.

The court below's decision is just in light of the above legal principles and there is no error in the misapprehension of legal principles as to the establishment of acquisition tax liability, etc., as alleged in the grounds of appeal, even if the plaintiffs rescinded a sales contract for the land of this case by agreement with Gyeonggi-do, as long as the acquisition tax liability was established by completing the payment of the purchase price for the land of this case on September 10, 208.

B. On the other hand, the court below rejected the plaintiffs' assertion that there are justifiable grounds for failure to establish a company-affiliated research institute on the land of this case, on the grounds that the cancellation of the agreement on the sales contract of this case was due to the management and financing circumstances of the plaintiffs, and it cannot be deemed that it was due to external reasons or inevitable even though the plaintiffs made normal efforts.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and there is no error of law by misapprehending the legal principles which affected the conclusion of the judgment, as alleged in the grounds of appeal.

3. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Lee In-bok (Presiding Justice)