Plaintiff

The head of Eunpyeong-gu Seoul Metropolitan Government

August 17, 2005

1. The Defendant’s imposition of acquisition tax of 38,569,650 won against the Plaintiff on September 21, 2004 and special rural development tax of 3,856,960 won shall be revoked.

2. The costs of lawsuit shall be borne by the defendant.

The same is as the disposition (the date of September 8, 2004 seems to be a clerical error due to mistake).

1. Details of disposition;

A. On January 23, 1996, the Plaintiff was a housing reconstruction association established on January 23, 1996, for the purpose of rebuilding cultural rental housing built on the land outside 172 and 3,706.81 square meters of land in Eunpyeong-dong, Seoul, and obtained approval of the business plan from the Defendant on August 7, 200 (the land size of 3,706.81 square meters was changed to 3,618.07 square meters later).

B. Around September 200, the Plaintiff purchased land from a third party and constructed an apartment building with 105 households (38 households and 67 households in general sale) on the ground of 3,618.07 square meters (hereinafter “instant land”) on the trust of the Plaintiff’s members of the Plaintiff’s association. On June 29, 2004, the Plaintiff received a pre-use inspection from the Defendant on June 29, 2004.

C. On August 27, 2004, the Plaintiff registered the right to the site in the name of the member for 38 households among the apartment complexes of this case, and for the remaining general unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit

D. On September 21, 2004, the Plaintiff reported that on August 27, 2004, the Plaintiff acquired the land remaining 1,562.79 square meters (=2,317.26-74.47) of the land purchased by the Plaintiff from a third party on the land attached to the general apartment among the instant land, 2,317.26 square meters (=2,317.26-754.47) as the disposal of trust property on August 27, 2004.

E. On the same day, the Defendant imposed and collected acquisition tax of KRW 38,569,650 with respect to the acquisition of the above land, and KRW 42,426,610 with respect to the acquisition of KRW 1,562.79 square meters on the same day, and KRW 3,856,960 with respect to the special rural development tax (hereinafter “instant taxation”), and the Plaintiff paid it on September 24, 2004.

F. The Plaintiff filed an objection on November 24, 2004 with respect to the instant taxation disposition, and on January 10, 2005, upon dismissal of the said objection, filed the instant lawsuit.

[Reasons for Recognition] Evidence No. 1, Evidence No. 2, Evidence No. 3-1, 2, Evidence No. 1-1, 2, Evidence No. 3-1, 3-4, Evidence No. 4-1, 2, and Evidence No. 5-1, 5-4, and the purport of the whole pleadings.

2. Whether the instant taxation disposition is legitimate

A. Summary of the parties' assertion

(1) The plaintiff's assertion

Of the instant land, the share that constitutes a site ownership of a general apartment unit among the instant land was trusted to the Plaintiff by the Plaintiff’s partner on the land owned by the Plaintiff, and the Plaintiff merely acquired the land in form and did not have been actually acquired. Therefore, the instant taxation disposition is unlawful as it does not constitute

(2) The defendant's assertion

The subject matter of acquisition, which was the cause of taxation of the instant taxation, is not the land that the Plaintiff acquired from its members, but the land corresponding to the general unit sale building among the apartment buildings in this case. The Plaintiff acquired the right to the site in this case at the time of completion of the apartment house in this case and completed the registration on August 27, 2004. Thus, the instant taxation disposition, which was the cause of taxation, is legitimate.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

(1) Nature of the right to a site

Article 42(4) of the Registration of Real Estate Act provides that “The right to a site refers to the right to use a site under Article 2 subparag. 6 of the Act on Ownership and Management of Condominium Buildings, which cannot be disposed of separately from the building.” Article 2 subparag. 6 of the Act on Ownership and Management of Condominium Buildings provides that “the right to a site use refers to the right to a site of a building that a sectional owner of an aggregate building owns in order to own a section of exclusive ownership.” Article 20(1) of the same Act provides that “The right to a site use by a sectional owner of an aggregate building shall follow the disposition of his/her section of exclusive ownership.”

Article 57(1) of the Registration of Real Estate Act provides that “In registering a site ownership in the indication column, the date of receipt of the application, matters stated in the application form, and matters concerning the indication of real estate shall be stated in the application form, and if a site ownership exists in a partitioned building, matters concerning the indication of such right shall be stated therein and a registrar shall affix his/her seal thereto.” Article 57-2(1) of the Registration of Real Estate Act provides that “When a registration of a site ownership has been made in a registration form for a building, the purport that the site ownership is a site ownership shall be registered in the relevant item column of the registration form for the land which is the object of such right shall be registered” (Article 57-2(1) of the Registration of Real Estate Act provides that “No land shall be closed or

In light of the above legal provisions, a right to a site is not a separate real right created by the Act on the Ownership and Management of Aggregate Buildings or the Registration of Real Estate Act, but a right, such as ownership, superficies, chonsegwon, and right to a lease, which a sectional owner holds with respect to a site of an aggregate building. However, if a certain land meets the requirements for establishing a right to a site under the Act on the Ownership and Management of Aggregate Buildings, the disposal of such right shall not be separately made from that of a section for exclusive use, and it shall be deemed that a right to a site is converted

(2) Whether the acquisition of a building site is subject to acquisition tax

If an aggregate building exists on the land and a sectional owner has a right to use the relevant land and can not be disposed of separately from the building (if there is no specific provision between the sectional owners, it shall be deemed that the land ownership, etc. is naturally divided under Article 20 (2) of the Act on the Ownership and Management of Aggregate Buildings), it shall be constituted as a site ownership, etc., and a site ownership is not acquired as a separate right separated from the land ownership, etc. by the registration of a site ownership. Therefore, there is no room to regard the case of a registration of a site ownership as an "acquisition of real estate" under Article 105 (1) of the Local Tax Act, and there is no room to regard it as a separate object of taxation under the same provision.

As in the case of this case, even if the plaintiff has ownership of the land of this case as to the land of this case and the land of this case became the object of site ownership for the ownership of exclusive ownership of the owners of the aggregate buildings (the plaintiff and members) and thereafter the registration of transfer from the plaintiff for the ownership of the exclusive ownership of the land of this case, the acquisition of the land of this case (which is not a dispute under Article 110 of the Local Tax Act) and the construction of the aggregate building is the acquisition of the land of this case for the plaintiff, and for the general buyer, it is only the date of acquisition of a certain share among the land of this case corresponding to the building and the site ownership, and it cannot be deemed that the plaintiff who had ownership of the site as a trust property has acquired the right to the land of this case by succession or original acquisition under the provisions of law. Thus, it cannot be deemed that there are any grounds for taxation of acquisition tax related to the site

(3) Sub-decisions

Ultimately, the instant taxation disposition is unlawful as it is subject to acts that are not subject to acquisition tax.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judges Kim Jung-han (Presiding Judge) and Kim Jong-chul