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(영문) 부산지방법원 2015. 6. 5. 선고 2014구합3311 판결
[취득세경정거부처분취소][미간행]
Plaintiff

See Attached List of Plaintiffs (Law Firm Sejong, Attorneys Kim Ba-young et al., Counsel for the plaintiff-appellant)

Defendant

Head of Busan Metropolitan Government

Conclusion of Pleadings

May 1, 2015

Text

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Purport of claim

The Defendant’s disposition of refusal to refund or correct acquisition tax stated in attached Form 2 against the Plaintiffs on August 7, 2014 shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiffs: (a) purchased each apartment building (hereinafter “the instant apartment building”) in Busan-gu, Busan-gu, Busan-gu, ○○○○○○○○○○○○○○ (hereinafter “the instant apartment building”), which was newly constructed by Posco Construction Co., Ltd. (hereinafter “Posco Construction”); and (b) reported and paid acquisition tax on November 201, along with a supply contract for an apartment and a certificate of payment for the sales price received from Posco Construction; and (c) filed a registration of ownership transfer for an apartment building.

B. The supply contract entered into with the Spanco Construction contains a special agreement stating the following (hereinafter “instant special agreement”).

- Special agreement on the supply of the apartment - ○○○○○○○○ ○○ ○○ ○○ ○○ - [10% of the purchase price at the time of payment of the remaining amount] (1) The seller’s Multilater Dam Trust shall, on the condition that the purchaser pays any balance, defer the payment of 10% of the purchase price at the time of occupancy for two years from the expiry date of the designation of occupancy. (1) Article 3 [Application of the principal security system when the purchase price falls below the sale price] (1) Construction shall be agreed at the time of the lapse of two years from the expiration date of the occupancy price set forth above (2) above to treat the apartment within the maximum of 10% of the sale price at the time of decline below the above apartment price (3) price at the time of sale in lots below the agreed price set forth in paragraph 1-2) with respect to the selection of the appraiser and the council of occupants’ representatives at the time of sale in lots, the remaining price at the time of sale in lots falls below 10%).

C. According to the instant special agreement, as of June 30, 2013, when two years have elapsed since the expiration date of the designation of occupancy, the market price of the instant apartment as of June 30, 2013 was adjusted by 876 households to lower the market price by 10% or more, respectively, and the 145 households’ market price was adjusted to lower by 6.225%. Accordingly, the Plaintiffs offset each of the remaining delay in payment by the market price (6.25% or 10%) under the said special agreement with the Poco Construction.

D. On November 14, 2013, the Plaintiffs requested the Defendant to refund acquisition tax equivalent to the amount disposed of by offsetting at the tax base amount of acquisition tax already paid. However, on November 21, 2013, the Defendant respondeded that acquisition tax refund is not possible on the ground that the offset disposition under the instant special agreement does not affect the validity of acquisition tax already established.

E. On August 7, 2014, the Defendant rejected both Plaintiff 145 and 424, July 1, 2014; Plaintiff 315 and 7, July 24, 2014; and Plaintiff 24 and April 28, 2014, respectively (hereinafter “instant refusal disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, Eul evidence Nos. 1 through 4 (including each number, if any) and the purport of the whole pleadings

2. Whether the rejection disposition of this case is legitimate

A. The plaintiffs' assertion

The Plaintiffs are the acquisition time of the instant apartment on September 4, 2013, which settled the remainder of the apartment sale price under the instant special agreement, and the sales price reduced according to the appraisal price at the time becomes the value at the time of acquisition, which is the tax base of acquisition tax. Therefore, the instant rejection disposition based on the premise that the sale price at the time of completing the registration of ownership transfer is the tax base of acquisition tax

B. Relevant statutes

Attached Form 3 shall be as listed in attached Table 3.

C. Determination

1) First, we examine the time when the plaintiffs acquired the apartment of this case.

Article 20(2)1 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 25545, Aug. 12, 2014) provides that “The acquisition time shall not be determined based on the date of acquisition, as long as the acquisition is completed, in the case of acquisition by onerous succession falling under any of the provisions of Article 10(5)1 through 4 of the Local Tax Act.” However, Article 10(11)1 of the same Act provides that “If a registration is made before the date of acquisition pursuant to Article 10(2) of the same Act, it shall be deemed that the date of registration is the date of acquisition,” and “ de facto acquisition” is a provision that expands the scope of acquisition even if it is not registered or recorded.

As seen earlier, the Plaintiffs completed each registration of ownership transfer at the time of paying the acquisition tax on the instant apartment, and the Plaintiffs acquired the ownership of the instant apartment on the date, such as the date.

2) Next, we examine the tax base of acquisition tax on the apartment of this case.

The main sentence of Article 10(1) of the Local Tax Act provides that “The tax base of acquisition tax shall be the value at the time of acquisition” and the main sentence of Article 10(2) provides that “The value at the time of acquisition shall be the value reported by the acquisitor.” Furthermore, Article 10(5)3 of the Local Tax Act provides that “The tax base of acquisition shall be the actual acquisition price or the annual installment payment for the acquisition for which the acquisition price is proved according to what is prescribed by Presidential Decree among the judgment and the corporate accounting books.” Article 18(3)2 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 24296, Jan. 1, 2013) provides that “the corporate accounting book prepared by the corporation shall be

According to the evidence mentioned above, the facts that the plaintiffs reported the acquisition tax on the apartment of this case and the actual payment amount entered in the supply contract and the certificate of payment for the apartment of this case prepared by Poco Construction as mentioned above are the acquisition price, and the above facts are added to the whole purport of the arguments. In other words, ① the sale price at the time when the plaintiffs completed the registration of ownership transfer for the apartment of this case was the amount entered in the supply contract and the certificate of payment for the apartment of this case, ② the special agreement of this case was made to the plaintiffs for the purpose of selling the apartment of this case at the early date of Poco Construction, with the intention of preserving the price for the apartment of this case within 10% of the purchase price for the purpose of selling the apartment of this case, the amount settled later according to the above special agreement can not be deemed the acquisition price at the time of acquiring the ownership of the apartment of this case. ③ In light of the facts that the plaintiffs' claims for correction after the local tax was not applied under the Framework Act on Local Taxes, the appraisal price at the time of the acquisition price at the first time after the acquisition price.

Therefore, the plaintiffs' assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as there is no reason.

[Attachment Omission]

Judges Lee Jin-gu (Presiding Judge)

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