[1] Whether the executor of a land readjustment project constitutes "a person who actually owns the land" as stipulated in Article 234-9 (1) of the Local Tax Act for the land scheduled for the land scheduled for the recompense of development outlay (negative)

[2] Whether the executor of a land readjustment project bears the obligation to pay the aggregate land tax as the "user" of the land stipulated in Article 234-9 (3) of the Local Tax Act for the land scheduled for the land secured by the land expropriation authority (negative)

[1] [Majority Opinion] Article 234-9(1) of the Local Tax Act provides that a person who actually owns land under the provisions of Article 234-8 as of the assessment basis date of the aggregate land tax shall be liable to pay the aggregate land tax. Since the aggregate land tax is a policy taxation system introduced to restrain excessive ownership of land and to expand the base of land ownership, it shall be deemed as profit-free property tax. In light of the legislative purpose and character of such aggregate land tax, the term "person who actually owns land" refers to the person who actually owns the land regardless of whether it is registered as the owner on the public registry, or not. However, the land readjustment project implementer is merely in the position of managing the reserved land of the land allotted by the authorities in recompense for development recompense for development outlay under the provisions of Articles 57(4) and 59 of the Land Readjustment and Rearrangement Projects Act for the proper implementation of the project, i.e., until the date of public notice of replotting disposition, it cannot be deemed that the implementer has the right to use land or to temporarily dispose of the land within the scheduled land tax for the above purpose.

[Dissenting Opinion] Article 234-9(1) of the Local Tax Act provides that "the person liable to pay the aggregate land tax shall not be the owner of the public register or the person who is not the owner under the laws or the person who is not the owner of the public register." It is clear that the actual person responsible for paying the aggregate land tax is to observe the land in question from the economic and practical perspective to determine whether the person is the owner of the land in question in order to fulfill the substance over form principle, regardless of the formal appearance of the owner under the private law in order to determine the substance over form principle. It is nothing more than a supplementary provision for the convenience of taxation in preparation for a case where the owner fails to report the change of the actual owner. Therefore, in determining the actual owner of the land in this case, the person responsible for paying the aggregate land tax is the person who is the owner of the land at the time of disposition of replotting, and thus, the person who is the owner of the land in question shall be the owner of the land in question who is the owner of the land at the time of disposition of land ownership.

[2] [Majority Opinion] Article 234-9(3) of the Local Tax Act provides that a land owner shall be liable to pay the aggregate land tax if it is impossible to verify the de facto owner because ownership is unclear as of the assessment basis date of the aggregate land tax. Thus, an employer of land shall be liable to pay the aggregate land tax only when the land used by him falls under “where it is impossible to verify the de facto owner because ownership is unclear” as of the assessment basis date of the aggregate land tax. In light of the legislative purpose and character of the aggregate land tax, it shall be deemed that the dispute arising from the ownership ownership itself arising in a lawsuit or the ownership owner in the public record is unknown or missing and is not managed by the owner for a long time. If the land of this case as of June 1, 191, which is the assessment basis date of the aggregate land tax of this case, is managed without a disposition of replotting to a third party, the land of this case shall not be deemed to fall under the status of the de facto owner under Article 234-9(3) of the Local Tax Act.”

[Small Opinion] Since the land partition rearrangement association, which is the implementer of a land rearrangement project, is not the actual owner of the land scheduled for the recompense of development outlay, if there is no de facto owner of the land scheduled for the recompense of development recompense, it shall be deemed that it falls under the case where the actual owner cannot be confirmed as the ownership is unclear" as stipulated in Article 234-9 (3) of the Local Tax Act, and it conforms to the legislative intent and form of Article 234-9 of the Local Tax Act concerning the person liable for the payment of the aggregate land tax. If the use is not the actual use only, the above association shall be a person liable for tax as a matter of course, and even if the association merely means the actual use, if it uses the management office, etc. on the land scheduled for the recompense of development recompense of development recompense of development recompense, it shall be reasonable that the association is liable for tax as the user. On the other hand, if there is a person who is only granted the right to use the land scheduled for the recompense of development recompense of development recompense of development outlay, even if the ownership is paid again to the association.

[1] Article 234-9 of the Local Tax Act, Articles 54, 57 (4), and 59 of the Land Readjustment Projects Act / [2] Article 234-9 of the Local Tax Act, Articles 54, 57 (4), and 59 of the Land Readjustment Projects Act

The Land Partition Adjustment Association (Attorney Hwang Young-soo, Counsel for the plaintiff-appellant)

Kim Sea Market (Attorney Cho Jong-soo et al., Counsel for defendant-appellant)

Busan High Court Decision 92Gu1063 delivered on December 9, 1992

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

The grounds of appeal are examined.

1. Article 234-9(1) of the Local Tax Act provides that a person who actually owns a land as provided for in Article 234-8 as of the assessment basis date of the aggregate land tax shall be liable to pay the aggregate land tax. Since the aggregate land tax is a policy taxation system introduced to restrain excessive ownership of land and to expand the base for the ownership of the land, it shall be a profit-free property tax. Thus, in light of the legislative purpose and character of such aggregate land tax, the term "person who actually owns the land" refers to a person who actually holds the ownership of the land, regardless of whether or not he is registered as the owner on the public register.

Meanwhile, Article 59 of the Land Readjustment Projects Act provides that the implementer shall manage the land or its part which no person who is entitled to use or profit from the land scheduled for replotting due to the designation or the disposition of suspending the use or profit of the land scheduled for replotting from the date of such designation to the date of the public notice of the disposition of replotting. The purpose of legislation is to clarify that in order for the implementer to properly implement the project, the implementer is responsible for managing the land of the land scheduled for the recompense land, reserved land, reserved land, and planned public facilities from the date of the public notice of the disposition of replotting to the date of the public notice of the disposition of replotting. Here, the management in this context is a concept of the reader of the Land Readjustment Projects Act to preserve, use, and improve the land conducted for the implementation of the project in accordance with the purpose of the project. Accordingly, the implementer may maintain and manage such land according to the purpose of the project, and in particular, with respect to the land scheduled for the recompense land secured for development outlay under Article 54 of the Land Readjustment Projects Act to the extent necessary for the implementation of the project.

When understanding the contents of the right to manage the executor's land stipulated in Article 59 of the Land Readjustment and Rearrangement Projects Act as above, it shall be deemed that Article 57 (4) of the same Act provides that "if the land reserved for replotting has been designated as a land reserved for the development recompense of development recompense under Article 54, the developer may allow him to use or profit from the land or dispose of it in order to cover the expenses of the compartmentalization and rearrangement project, it shall be deemed that the contents of the right to manage the land reserved for the development recompense of development recompense under Article 59 of

As such, the operator is in the position of managing the land scheduled for the recompense of development outlay in order to properly implement the project, i.e., the period of managing the land scheduled for the recompense of development recompense in accordance with the provisions of Articles 57 (4) and 59 of the Land Readjustment Projects Act, i.e., the period of managing the land scheduled for the recompense of development recompense in order to properly implement the project, and can not be disposed of to any third party without compensation, such as the owner, etc. for the purpose other than the purpose of securing expenses for the project, and can not arbitrarily waive the right to use or dispose of the land for the above purpose, and can file a claim for exclusion of interference for the implementation of the project even after the disposal of the land scheduled for the recompense of development recompense, and the sale price of the land scheduled for the recompense of development recompense in development recompense in question is not used for any purpose other than the project concerned, and even if there is the balance of its execution, it is not in violation of the legislative purpose of Article 234-9 (1) of the Local Tax Act.

However, according to the facts duly admitted by the court below, the plaintiff is the implementer of a land readjustment project as the land rearrangement project, and all of the land in this case is the land designated as the land scheduled for the recompense of development outlay, and there was no public notice of land substitution disposition as of June 1, 1991, which is the assessment basis date of the aggregate land tax of this case. Thus, even if the land substitution land was designated as the land scheduled for the recompense of development recompense for household land, the plaintiff cannot be deemed as the "person who actually owns the land" under Article 234-9 (1) of the Local Tax Act as the implementer of the land readjustment project

Although the judgment below on this point is somewhat inappropriate, it is just in its conclusion that the plaintiff does not fall under the "person who actually owns the land" as provided in Article 234-9 (1) of the Local Tax Act, and contrary to the allegations in the grounds of appeal, it does not err in the misapprehension of legal principles as to the person liable for payment of the aggregate land tax.

2. In addition, Article 234-9(3) of the Local Tax Act provides that the user is obligated to pay the aggregate land tax if it is impossible to confirm the de facto owner because the attribution of ownership is unclear as of the assessment basis date of the aggregate land tax. Thus, the user of land is obligated to pay the aggregate land tax only when the land used by him falls under the “where it is impossible to confirm the de facto owner because his ownership is not clear” as of the assessment basis date of the aggregate land tax. In light of the legislative purpose and character of the aggregate land tax as seen above, it refers to the land, etc. in which the dispute over the reversion of ownership arises in the lawsuit, or the owner of the registered land is not under his control for a long

However, according to the facts duly admitted by the court below, the land of this case as of June 1, 1991, which was the assessment basis date of the aggregate land tax of this case, is managed by the implementer without disposing of it to a third party, and there was no public notice of a replotting disposition against the land of this case. Thus, it cannot be viewed as a "case where the actual owner cannot be confirmed because the ownership is unclear" as stipulated in Article 234-9 (3) of the Local Tax Act, and the plaintiff, the implementer, is only in the position of managing the land of this case temporarily, and therefore, it cannot be viewed as a "user" as stipulated in Article 234-9 (3) of the Local Tax Act in light of the profit-making nature of the aggregate land tax.

The grounds of appeal are without merit.

3. Therefore, the appeal shall be dismissed and the costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Kim Jong-soo, Justice Park Jong-ho, Justice Cho Jae-ho, Justice Cho Chang-hun, Justice Lee Yong-hun, and Justice Lee Lee Jae-soo.

4. Dissenting Opinion by Justice Kim Jong-soo, Justice Park Jong-ho, Justice Cho Chang-ho, Justice Cho Chang-hoon, Justice Lee Yong-hoon, and Justice Lee Lee Jae-soo is as follows.

A. Article 234-9(1) of the Local Tax Act provides that a person liable to pay the aggregate land tax shall be a person who actually owns the land pursuant to Article 234-8 as of the tax base date; in each subparagraph of paragraph (2), the owner in the public register as an exception thereto; and in paragraph (3) of this Article, the user shall be the person liable to pay the tax if the de facto owner is unknown because the ownership as of the tax base date is unclear.

As above, although the de facto owner is stipulated as a taxpayer in principle in the aggregate land tax, other cases where the de facto owner is stipulated as a taxpayer under the tax law are stipulated as a taxpayer under Article 182(1) and (2) of the Local Tax Act (this is the same as the provision of the property tax on land that can be called a telegraph of the aggregate land tax newly established June 16, 1989), and Article 4(3) and (4) of the Land Excess Profits Tax Act are stipulated under Article 21(2) of the Act on the Ownership of Housing Sites in addition to the tax law, the above case is used as a supplementary concept to supplement the owner of the public register who is the de facto owner.

In general, the term "actual owner" is used as the term "actual owner" in the Act on Special Measures for the Registration of Real Estate, etc. in the case of acquisition of an unauthorized building and use of and profit from an unauthorized building in the case of acquisition of ownership, registration of transfer of ownership, etc., if he/she purchased the old real estate, automobile, etc. in the private law field in comparison with the owner or legal owner in the public law field, but it is used as a special case where he/she does not have the form of change of real rights externally required under the private law, but it is merely used to recognize the rights and duties corresponding to the owner.

Therefore, the concept of the above de facto owner is not a unique concept used only in the tax law, but it is not established in the private law, so the meaning of the concept in the tax law area should be interpreted properly in accordance with the characteristics of the tax law and the purpose and purpose of the provision in question.

Article 14(1) of the Framework Act on National Taxes provides that when the ownership of income, profit, property, act or transaction subject to taxation is nominal and there is a separate person to whom such income, profit, act or transaction belongs, the person to whom such income, profit, or transaction belongs shall be liable to pay taxes and the tax law shall apply if the substance does not coincide with the form

In this context, the term "reality" means, notwithstanding the legal form, de facto control over the economic power that actually exists, and the term "actual owner" in each of the above tax laws is defined as a "actual owner" in principle or as a supplementary taxpayer in the above tax laws, in cases where the legal form and substance of reversion of ownership do not coincide with that of ownership, it is clearly stated that a legal owner should be deemed to have a substantial tax-bearing capacity and thus, tax liability should be imposed on him/her. In the tax laws that declare the above provision of the Framework Act on National Taxes,

Article 234-9 (1) of the Local Tax Act provides that "the person liable to pay the aggregate land tax is not the owner of the public register or the person who is not the owner of the law, but the actual owner of the land." It is clear that it is intended to observe the relevant land from the economic and practical perspective to determine whether the person is the owner of the land exclusively in charge of it in order to fulfill the substance over form principle, regardless of the formal legal appearance held by the owner of the private law and to observe the relevant land from the economic and practical perspective to determine whether the person is the owner of the land.

Therefore, in determining the de facto owner at this time, it is not necessarily required to have all the powers of the owner of private law.

The Supreme Court held that the right of the implementer to the land scheduled for the recompense of development outlay in the land readjustment project is the same as the transfer of ownership acquired at the time of a disposition of replotting in the future (see Supreme Court Decision 87Da1149, Feb. 9, 198; Supreme Court Decision 93Da57964, Mar. 10, 195, etc.). The implementer's right cannot be deemed as a private ownership, but the implementer has a tax-bearing capacity by taking an exclusive economic control over the right to use and the right to dispose of the land scheduled for the recompense of development recompense of development recompense of land, which is the actual owner of the land scheduled for the recompense of development recompense of development recompense of land. Therefore, in light of the content of such right, the implementer is the actual owner of the land planned for the land planned for the recompense of development recompense of development outlay of land.

B. As above, it shall be deemed that the association is liable to pay the aggregate land tax for the land reserved for the land secured by the authorities in recompense for development outlay. However, the court below and the majority opinion present the argument that imposing the aggregate land tax on the association is unreasonable on the premise that it is the actual owner.

The majority opinion clearly states that the implementer shall be responsible for the achievement of its purpose by managing the land of the land of the land secured by the recompense for development outlay, the land of the land reserved for development recompense, the land reserved for reservation, the land reserved for reservation, and the land reserved for public facilities which cannot be used or profitable due to the designation or use of the land reserved for development outlay or the disposition of suspension of profit for the proper implementation of the project, and the content of the management shall be the preservation, use, improvement, etc. of the land conducted for the implementation of the project according to the purpose of the project. In particular, the land reserved for development recompense for development recompense for development recompense for development recompense may be used or profited to a third party or disposed of to the extent necessary for the implementation of the project, and it is merely a detailed statement of the management right for the land reserved for development recompense for development recompense

However, I first point out that it is difficult to understand when considering the legal system as the object of the implementer's right of management stipulated in Article 59 of the same Act without distinguishing the land scheduled for the recompense of development outlay from the land scheduled for the reserved land or the land scheduled for the public facilities.

Article 57 of the same Act provides that "in case where a land substitution is designated with respect to the land allotted by the authorities in recompense for development outlay under the provisions of Article 54, the executor may use or profit from the land, or dispose of it in order to cover the expenses of the compartmentalization and rearrangement project," as a provision on the effect of the designation of the land substitution for replotting, and Article 57 Paragraph (4) of the same Act provides that "in order to cover the expenses of the land substitution and rearrangement project, the land allotted by the authorities in recompense for development outlay for development outlay for development outlay for development outlay for the purpose of the project, which is not determined the land substitution for the purpose of creation, different from the land scheduled by the person who acquires ownership by the determination of the land substitution in the land substitution plan, the contents of the executor's right to the land shall be different from the land scheduled for development and the land scheduled for public facilities to be reverted to the State or a local government, so Article 59 of the same Act, which provides for the right to manage the land scheduled for development shall be applied only where there is no person who can use or benefit from the land immediately.

In addition, even though the right to manage the land scheduled for the recompense of development outlay is called the right to manage the land scheduled for the recompense of development outlay, the issue of whether the implementer is the actual owner of the land is according to whether the land is actually controlled exclusively from the economic and practical perspective according to the actual contents of the management right. Therefore, in this regard, it cannot be pointed out that the concept of management right is uncertain in the judgment of the actual owner.

In addition, the court below or the majority opinion stated that the union cannot be seen as a de facto owner of the land allotted by the authorities in recompense for development outlay, the temporary nature of the union's public interest, the absence of permission or waiver of authority to a third party other than the purpose of appropriation for business expenses, the restriction on the sale price of the land allotted by the authorities in recompense for development outlay and the exclusion of interference for the implementation of the project even after the disposition is made. It is due to the fact that the actual owner is identified from the same point of view as the owner in private law, or it is not a legal ground to view that the union is not a de facto owner of the land allotted by the authorities in recompense

C. Next, if the association cannot be viewed as a de facto owner of the land scheduled for the recompense of development outlay as stated in the majority opinion, what problems may arise.

The previous owner of the land scheduled for the land scheduled for the recompense of development outlay (which means that it is impossible to specify the land as the nature of the land scheduled for the recompense of development recompense, however, it means the previous owner identified in the physical phenomenon of the land scheduled for the recompense of development recompense, which is the designation of the land scheduled for the recompense of development recompense, and the use and profit-making thereof are suspended from the effective date of the designation, so economic control is not allowed. The land subdivision rearrangement association is a member of the partnership, which is a corporation, but is separate from the land rearrangement association, under the tax law, as it is independent from the land rearrangement association, so even if the profit actually belongs to the association member, it is not doubtful that the association is not the actual owner of the land scheduled for the recompense of development recompense of development recompense, so if there is no de facto owner of the land scheduled for the recompense of development recompense of development recompense

In regard to this, the majority opinion states that the case where the employer becomes liable for tax payment refers to the land, etc. in which the owner of the ownership in a lawsuit is under way or is missing and the owner of the public record is not under his management for a long time, and the land reserved for the recompense of development outlay does not fall under the land scheduled for the recompense of development outlay, and the partnership is managing it

However, as stated in the majority opinion, if a union is not a de facto owner of the land scheduled for the recompense of development outlay, the union does not have a de facto owner as seen above, and thus, it shall be deemed that the "where the ownership is unclear and it is impossible to confirm the de facto owner" as provided in Article 234-9 (3) of the same Act constitutes "where the ownership is not recognizable," and it shall conform to the legislative intent and the form of the provision of

If the use at this time does not mean only the actual use, it is naturally a taxpayer as an employer, and even if the actual use means only the actual use, it is reasonable that a partnership is liable to pay the aggregate land tax when it constructs and uses a management office, etc. on the planned land of the land secured by the recompense for development outlay. On the other hand, if there is a person who is granted only the right to use the land from the partnership, the employer is an employer in the case where the actual owner is not confirmed because the ownership is not obvious even though the right to use the land has been paid to the partnership. Therefore, it is reasonable to view that the partnership is liable to pay aggregate land tax as the actual owner of the planned land secured by the recompense for development outlay for the purpose of preventing such improper result.

In addition, land secured by the authorities in recompense for development outlay is established for the purpose of appropriating project expenses, which is only for the smooth financing of expenses for the progress of the project, and the partnership can raise funds for the purpose of carrying out the project by the articles of association (Article 28 of the Land Readjustment and Rearrangement Project Act). In such a case, the land area to be supplied to the union members is increased so that the land area to be supplied to the union members

In other words, the association refers to how the area of land allotted by the authorities in recompense for development outlay is determined in the articles of association or that the aggregate land tax should be imposed in the same way as the land reserved for development outlay is the land reserved for development outlay, and in Article 57 (4) of the Land Readjustment and Rearrangement Projects Act, the effect of designating the land reserved for development recompense should be specified together with the effect of designating the land reserved for development recompense.

In addition, it is unreasonable to view that the association is not a person liable to pay the aggregate land tax due to the reason that it is not a de facto owner, even though the scheduled land for the recompense of development outlay is designated even if it is immediately disposed of, and if it continues to be held without disposing of it, the economic benefits arising from

In this respect, it is difficult to find an inevitable legal principle that excludes prospective land secured by the authorities in recompense for development outlay from aggregate land tax subject to taxation.

Finally, as the majority opinion, if the right to the land reserved for the recompense of development outlay cannot be deemed as a de facto owner on the ground that it is merely the status of managing the land reserved for the recompense of development recompense as the right to manage the land reserved for the recompense of development recompense by the date of the public announcement of the land substitution disposition, even if the association becomes aware of the land substitution disposition and acquires the ownership under the private law, the right to manage the land thereafter cannot be deemed as a de facto owner even after the date of the public announcement of the land substitution disposition, since the contents of the right to manage the land reserved for the recompense of development recompense of development recompense of development recompense after the date of public announcement of the land substitution disposition, and it cannot be deemed unreasonable to interpret it as different after the

D. Ultimately, the court below or the majority opinion does not point out that the taxpayer for the aggregate land tax under Article 234-9 of the Local Tax Act is a de facto owner who is not an owner or a legal owner registered in the public register, and it does not properly understand the purport of determining the taxpayer according to whether the taxpayer has exclusive economic power over the pertinent land from a reader of the tax law, and in defining de facto owner, it refers to a person who has a real ownership over the pertinent land regardless of whether the owner is registered in the public register. However, in this case, it cannot be pointed out that in this case, it would lead to confusion with the concept of the owner in private law, or to confuse it with the concept of the land scheduled for the recompense of the development recompense of development outlay or the substance of the right to the land scheduled for the reserved land using the term of the right to manage it as the right to manage it.

If the land subject to taxation is designated as the land scheduled for the recompense for development outlay as of the tax base date, the plaintiff association should pay the aggregate land tax. Thus, the cancellation of the disposition by the court below for the reason that the plaintiff association is not the de facto owner is erroneous in the misapprehension of legal principles as to the de facto owner of the aggregate

Chief Justice Yoon-young (Presiding Justice) (Presiding Justice), Kim Jong-soo, Justice Kim Jong-ho, Justice Kim Jong-ho, Justice Park Jong-ho, and Justice Lee Jae-ho, Justice Lee Jong-hee, Justice Lee Jong-hee, Justice Lee Jong-hee, Justice Lee Jong-hee, Justice Lee