(a) In a case where a housing construction businessman registered under Article 6 of the Housing Construction Promotion Act sells land to a national housing construction site, the nature of the act of applying for tax exemption under the former Tax Reduction and Exemption Control Act (amended by Act No. 3865 of Dec. 26, 1986) by the purchaser

B. The case holding that the above sales contract under "A" is liable to apply for tax exemption in relation to the relation between the housing construction business operator and the transferor, since it is deemed that there was an implied agreement on the premise that the housing construction business operator applied for tax exemption or the application for tax exemption

A. Where a housing construction business operator registered under Article 6 of the Housing Construction Promotion Act sells land to a national housing construction site, a person applying for exemption from tax exemption under the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 3865 of Dec. 26, 1986) is right to regard it as a right rather than the obligation of an acquirer, as the actual user of the land, or as the law

B. The case holding that it is reasonable to view that the above sales contract was based on the premise that the housing construction business operator would apply for tax exemption within the lawful period or that there was an implied agreement between the housing construction business operator and the housing construction business operator to apply for tax exemption, on the ground that it is reasonable to deem that, at the time of the sales contract as referred to in the above "A, land was purchased by the housing construction business operator to be exempted from capital gains tax or special surtax pursuant to the transfer, and where the housing construction business operator, which is the buyer, has constructed housing exceeding the scale of national housing, the transferor would be responsible for the capital gains tax, etc. to be treated as the object of transfer, and that the transferor

A.B. Article 6 of the Housing Construction Promotion Act, Article 62(1) proviso of the former Regulation on Tax Reduction and Exemption Act (amended by Act No. 3865 of Dec. 26, 1986), and Article 62(3) of the former Regulation on Tax Reduction and Exemption Act

Attorney Park Jong-soo, Counsel for the defendant-appellant of a school foundation

Maritime Development Co., Ltd., Counsel for the defendant-appellant

Busan High Court Decision 90Na2390 delivered on October 31, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. The gist of the judgment below is as follows.

A. On October 26, 1985, the sales contract was concluded between the non-party 1 (hereinafter referred to as the non-party) and the non-party 2 on the land owned by the plaintiff (hereinafter referred to as the "the land of this case") and the non-party 3 and the non-party 2 on the land owned by the non-party 2. The land owned by the plaintiff was entrusted to the non-party who was the president of the plaintiff corporation, and the non-party 2 (the non-party 2) was also entrusted to the non-party who was the non-party 3, who was the head of the non-party corporation, the non-party was the seller to enter into the sales contract as above.

B. At the time of the above sales contract, the Defendant was a housing constructor registered pursuant to Article 6 of the Housing Construction Promotion Act and was an end user of the proviso of Article 62(1) of the former Tax Reduction and Exemption Control Act (amended by Act No. 3865 of Dec. 26, 1986). Thus, between the parties, it was recognized that the Defendant would be exempt from capital gains tax or special surtax on transfer by purchasing the above land, and where the Defendant, the buyer, constructed a house exceeding 25.7 square meters of the national housing scale, the transfer income tax, etc. to be the transferor was

C. The business year of the Plaintiff Corporation was from March 1 every year to February 2 of the following year, and the deadline for filing the tax base return for the taxable year to which the date of transferring the instant land belongs is the deadline for filing the tax base return.

D. On April 15, 1987, the Plaintiff received an application for exemption from the Defendant to exempt the special surtax on the instant land that was transferred to the Defendant via the Nonparty, and did not exempt the head of the competent tax office from the exemption on the ground that the application period was expired, and the special surtax following the said transfer was collected compulsorily, and paid the remainder.

E. The plaintiff, through the non-party, knew that the special surtax pursuant to the sale of the land of this case was exempted for the sale of the land of this case to the defendant, who is a housing constructor at 25.7 square meters or less. In order to enable the plaintiff to be exempted from special surtax, the defendant asserted that the purchaser, who was the purchaser, was liable to compensate for damages equivalent to the amount of the special surtax by failing to file an application for exemption by May 29, 1986, which is the plaintiff's tax base return deadline, and caused the plaintiff to collect or pay the special surtax within the deadline. However, since the plaintiff was not a party to the contract of this case, the plaintiff did not have any contractual obligation to apply for exemption to the plaintiff, and the non-party's failure to file an application for exemption within the lawful period of time did not assert or prove any grounds for constituting a tort in relation to the plaintiff, and the non-party 4, who was an employee of the non-party, the non-party 2 and the non-party 2 had no reason to apply for exemption from the transfer of this case's signature and seal.

2. On the first ground for appeal

A. According to the records, as to the plaintiff's assertion that the plaintiff sold the land of this case to the defendant in the complaint, the defendant entered into a sales contract with the non-party entrusted by the plaintiff at the time of purchase of the land of this case from the plaintiff at the time of the plaintiff's purchase of the land of this case. After that, the defendant stated that all transactions concerning the sale of land of this case, such as intermediate payment and payment of balance, and application for additional tax exemption, were made with the non-party representing the parties concerned. Accordingly, the sales contract of the land of this case owned by the plaintiff shall be deemed to be a party to the contract of this case and the non-party was the plaintiff's representative, and it shall be deemed that there is no dispute between the parties concerned, and the non-party is also acknowledged by the testimony of the non-party No. 7-6 (Evidence No. 1) and the non-party No. 1 of the court below's witness.

B. However, as seen earlier, insofar as the Plaintiff’s ground of appeal on Articles 2 and 3 of the Plaintiff’s ground of appeal is not accepted, the lower court’s error on this point does not affect the outcome of the instant case, and the argument is without merit.

3. On the second ground for appeal

A. It is reasonable to view that a person applying for exemption under the above Regulation of Tax Reduction and Exemption Act is a right rather than an acquirer who is an end user or a legal one, as an acquirer’s obligation.

B. However, according to the facts acknowledged by the court below, it was recognized that the parties at the time of the instant sales contract were exempted from capital gains tax or special surtax on transfer by the Defendant’s purchase of the instant land, and where the Defendant, the buyer, constructed housing exceeding national housing scale, capital gains tax, etc. to be the transferor, was agreed upon by the Defendant to assume the responsibility of the Defendant, and legal application for exemption can only be made by the buyer. Thus, it is reasonable to deem that the instant sales contract was based on the premise that the Defendant applied for exemption within a legitimate period, or that there was an implied agreement between the Defendant to grant application for exemption, and therefore, it is reasonable to deem that the court below did not have the obligation to grant the Defendant an exemption from taxation

C. However, according to the facts acknowledged by the court below, the defendant delivered the documents to the non-party 4, who is an employee of the non-party, who is an agent of the plaintiff, to apply for exemption from the conclusion of the contract of this case, receipt of the price, transfer of ownership, etc., within a lawful period. The non-party's land owned by the non-party was exempted from the capital gains tax by submitting an application for exemption within the deadline. Thus, the defendant is deemed to have fulfilled the duty to apply for exemption from the relationship with the plaintiff. Thus, it is reasonable to view that the non-party's land did not apply for exemption from the deadline within the deadline is due to the plaintiff's mistake rather than the defendant's error, barring any special circumstance. Thus, the court

4. On the third ground for appeal

According to the records, except this part of the first ground for appeal, the fact-finding by the court below is acceptable, and there is no violation of the rules of evidence. Therefore, there is no reason to discuss.

5. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)