Where a housing association, etc. prescribed in Article 105 (10) of the former Local Tax Act implements a project to build a new apartment, commercial building, etc. on the basis of land purchased from a third party on trust from a member or a land purchased from a third party, and where part of the land belongs to a member and the remainder belongs to a person other than a member, the method of calculating the area of land purchased from a third party among land for non-members

In principle, where a housing association, etc. under Article 105 (10) of the former Local Tax Act (amended by Act No. 9302 of Dec. 31, 2008) implements a new project on the basis of land trusted by a member and the land purchased from a third party from a third party, and where part of the land belongs to a member and the remainder belongs to a person other than a member by selling it in lots to the cooperative member and a person other than the cooperative member, the area of the land purchased from a third party out of the land for non-member who does not belong to the cooperative member should be determined according to the actual reversion. However, if the whole land trusted by the cooperative member and the land purchased from a third party is used as a single project site, and any of them belongs to a person other than the cooperative member, the area of the land purchased from a third party among the land for non-member who does not belong to the cooperative member, barring any special circumstance, shall be calculated preferentially in the area of the land purchased from a third party

Article 105 (10) (see current Article 7 (8)) of the former Local Tax Act (Amended by Act No. 9302, Dec. 31, 2008) (see current Article 7 (8))

A resignation-based apartment reconstruction association

Busan Metropolitan City and one other (Attorney Han-chul, Counsel for the defendant-appellant)

Busan High Court Decision 2009Nu2382 decided December 23, 2009

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. citing the reasoning of the first instance judgment, the lower court: ① newly constructed 2,947 apartment units on the land which the Plaintiff, a housing reconstruction association, purchased from a third party with an additional purchase of 24,187 square meters from a third party (2,230 households, 717 households in general), and 142 households (41 households in general), and obtained authorization for completion on December 7, 2006; and completed registration of ownership transfer to the Plaintiff on the land of general apartment units and shopping districts on January 26, 207; ② the Plaintiff filed a revised registration of ownership transfer on the land of 133,243 square meters for the entire land of housing reconstruction project; ② the Plaintiff filed a revised registration of ownership transfer on the land of 200 square meters, and the Plaintiff filed a revised registration of ownership transfer on the land of 24,000 square meters, and the Plaintiff filed a report of ownership transfer on the land under the name of 30,7363,000 square meters and special rural development tax for the Plaintiff’s.

원심은 이러한 사실관계를 토대로, 일반분양분 토지 중 조합원으로부터 신탁받은 토지에 상응하는 부분에 관한 취득세와 농어촌특별세의 신고행위는 그 납세의무에 관하여 대법원 2008. 2. 14. 선고 2006두9320 판결 등이 선고될 때까지 법규의 해석 및 적용에 관하여 다툼의 여지가 있었으므로 신고의 하자가 중대·명백하다고 볼 수 없으나, 일반분양분 토지 중 제3자로부터 매입한 토지에 상응하는 부분에 관한 취득세와 농어촌특별세의 신고행위는 원고가 이미 취득세와 농어촌특별세를 납부하였기 때문에 추가적인 납세의무가 없었음에도 불구하고 잘못된 행정지도로 인하여 다시 취득세와 농어촌특별세를 신고하였고 이와 같은 이중납세 신고는 그 하자가 중대·명백하여 당연무효에 해당하므로 피고들은 원고에게 일반분양분 토지 중 원고가 제3자로부터 매입한 토지에 상응하는 부분에 관한 취득세와 농어촌특별세를 부당이득으로서 반환할 의무가 있다고 전제한 다음, 전체 사업용 토지 133,243㎡에는 조합원으로부터 신탁받은 토지와 제3자로부터 매입한 토지가 포함되어 있는데, 위 각 토지는 일단의 토지를 구성한 후 재건축사업이 추진되었고, 이후 아파트 및 상가 부분, 도로 및 학교용지 등으로 구획정리가 되었을 뿐만 아니라 아파트 및 상가의 대지 전체가 1필지의 토지로 환지된 점, 원고가 제3자로부터 매입한 토지는 전체 사업용 토지의 여러 군데에 흩어져 있었으며 1필지의 토지 위에 건립된 아파트 및 상가는 조합원용과 일반분양분이 별도로 건축되어 있는 것도 아닌 점 등에 비추어, 이중납세 신고에 해당하는 부분의 면적은 일반분양분 토지 30,773.68㎡에 관하여 아파트 및 상가의 대지 면적 117,006㎡ 가운데 원고가 제3자로부터 매입한 토지 면적 24,187.8㎡가 차지하는 비율로 안분된 면적인 약 6,360.9㎡(≒ 30,773.68㎡ × 24,187.8㎡/117,006㎡)로 봄이 상당하다고 판단하였다.

2. However, we cannot agree with the judgment of the court below for the following reasons.

A. Article 105(10) of the former Local Tax Act (amended by Act No. 9302, Dec. 31, 2008; hereinafter the same) provides that “The housing association under the provisions of Article 32 of the Housing Act and the housing reconstruction association under the provisions of Article 16(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents shall be deemed to have acquired real estate (referring to apartment houses, incidental facilities, welfare facilities, and land annexed thereto) acquired for its members shall be deemed to have been acquired by its members.” In addition, the housing association, etc. provides that the housing association, etc. shall preferentially vest in the members after the completion of a project for constructing an apartment and commercial building, which is entrusted with the land from a third party other than the land entrusted with the association members to use the land for the association members within the extent that the land to be reverted to the association members is less than the land for the association members. Furthermore, it conforms with the purpose of the taxpayer or the parties concerned to whom the land to be reverted is newly purchased from a third party.

Therefore, in a case where a housing association, etc. under Article 105(10) of the former Local Tax Act carries out a project for constructing an apartment house and a commercial building based on land purchased from a third party on trust from a cooperative member and a land purchased from a third party, and where part of the land belongs to a cooperative member and a third party, and the remainder belongs to a person other than a cooperative member, the area of the land purchased from a third party out of the land for non-cooperative members who do not belong to the cooperative member should be determined according to the actual reversion. However, if the land purchased from a third party is used as a whole as a single project site, and the actual reversion of which portion belongs to a cooperative member, barring any special circumstance, the area of the land purchased from a third party among the land for non-cooperative members who are not attributed to the cooperative member should be calculated in preference to the area of the land purchased from a third party.

B. Examining the factual basis in light of the aforementioned legal doctrine, the part corresponding to the land purchased from a third party among the part of the general parcel-out land of 30,773.68 square meters, that is, the area subject to double tax payment return, shall be calculated by deeming that the entire area of the land purchased by the Plaintiff from a third party is preferentially corresponding thereto.

Nevertheless, the court below held that the area corresponding to the land purchased from a third party among the land for general sale should be calculated pro rataly according to the ratio of the size of the land purchased from a trust from a third party. In so doing, the court below erred by misapprehending the legal principles on the method of calculating the portion of the land purchased from a third party among the land for general sale. The ground of appeal pointing this out is with merit.

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)