The purpose and meaning of the proviso of Article 110 subparagraph 1 of the former Local Tax Act, and whether a reconstruction association may impose acquisition tax on non-use land for partnership housing acquired by a trust from its members (negative)

In light of the purport and content of Article 110 subparag. 1 of the former Local Tax Act (amended by Act No. 5406 of Aug. 30, 197), Article 105 subparag. 10 of the same Act newly established due to the above amendment, and the legal principles of trust, etc., the proviso of Article 110 subparag. 1 of the Local Tax Act does not have been newly established for the purpose of converting the formal ownership transfer of trust property between a housing association that is a trustee and a truster into taxable objects from the previous non-taxation of acquisition tax, and it does not constitute a “transfer of trust property” under the proviso of Article 105 subparag. 10 of the same Act, since real estate acquired by a housing association for its members is deemed to have been acquired even if it is acquired by a trust method, and thus, it appears that there is no room to apply the main sentence of Article 110 subparag. 1 of the same Act to the same part, and thus, the term “transfer of trust property between the association member and the association member” under Article 105 of the Local Tax Act.

Article 110 subparagraph 1 of the former Local Tax Act (amended by Act No. 5406 of Aug. 30, 1997), Article 105 (10) and proviso to Article 110 subparagraph 1 of the former Local Tax Act (amended by Act No. 6916 of May 29, 2003)

Plaintiff (Attorney Kim J-ho, Counsel for the plaintiff-appellant)

The head of Eunpyeong-gu Seoul Metropolitan Government (Law Firm Hong, Attorneys Ansan-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2005Nu21806 decided May 10, 2006

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

We examine the grounds of appeal.

1. Acquisition subject to acquisition tax means original acquisition, acquisition by succession or with or without compensation, or creation of land through reclamation, etc. (Article 104 subparagraph 8 of the Local Tax Act). Article 110 subparagraph 1 of the former Local Tax Act (amended by Act No. 5406, Aug. 30, 197; hereinafter “former Local Tax Act”) provides that the acquisition of trust property by trust (limited to the acquisition by trust registration under the Trust Act; b) where trust property is transferred from a truster to a truster; c) where trust property is transferred from a truster due to the completion or termination of the trust, acquisition by a new trustee; c) Article 10 subparagraph 1 of the former Local Tax Act (amended by Act No. 14 of the Housing Construction Promotion Act and Article 110 subparagraph 4 of the same Act provides that acquisition tax shall not be imposed upon a newly-established housing association (excluding the acquisition by newly-established provisions of Article 106 of the same Act) and its appurtenant land.

2. In light of the above provisions as to the subject of acquisition tax, the process and purport of the above amendment, and the legal principles of trust, the proviso of Article 110 subparagraph 1 of the Local Tax Act, after the amendment, does not have been newly established for the purpose of converting the formal ownership transfer of trust property between a housing association which is a trustee and a truster member into taxable objects from the previous non-taxation subject to acquisition tax, but at the same time, the portion of real estate acquired by a housing association for its members pursuant to Article 105 (10) newly established for its members is deemed to have been acquired even if it is acquired by a trust method, and thus, it appears that the main sentence of Article 110 subparagraph 1 of the same Act is no longer applicable to that portion and was newly established for the purpose of expressing such purport. Thus, the phrase "acquisition of trust property between the housing association and its members" does not mean transfer of all trust property between the housing association and its members, but it shall be interpreted that only "transfer of trust property deemed to have been acquired by a cooperative member under Article 105 (10).

3. Upon aggregating the facts and records acknowledged by the court below, the plaintiff is a reconstruction association for the purpose of rebuilding of a cultural reconstruction house as stated in the judgment of the court below. On August 7, 200, the plaintiff transferred and acquired the land owned by the plaintiff's members on the ground of trust after obtaining approval of the business plan from the defendant on August 7, 200, and constructed an apartment building with 105 households on the ground of trust, which was constructed from a third party, and received a use inspection on June 29, 2004, and reported that the plaintiff acquired the land remaining after 1,562.79 square meters of the land in general among the above land from a third party and paid acquisition tax thereon on September 24 of the same year. Thus, since acquisition tax returned and paid by the plaintiff should be subject to acquisition tax on the land acquired by a trust from a non-member, the court below erred by misapprehending the legal principles as to the acquisition tax under Article 10 of the Local Tax Act, and thus, it cannot be deemed unlawful.

4. 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 on the bench.

Justices Jeon Soo-ahn (Presiding Justice)