In imposing acquisition tax under the Local Tax Act, the time of acquisition of redevelopment apartment of redevelopment partner

Articles 29(1)1, 104 subparag. 8, 105(2), and 109(3) of the Local Tax Act; Article 73(1) and (4) of the Enforcement Decree of the Local Tax Act; Article 38, 39(1) and (2), and 42(1) of the former Urban Redevelopment Act (repealed by Article 2 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Act No. 6852, Dec. 30, 2002);

Supreme Court Decision 95Nu618 delivered on August 23, 1996 (Gong1996Ha, 2903 delivered on August 19, 2003) Supreme Court Decision 2001Du11090 Delivered on August 19, 2003

A consignors

The head of Gangseo-gu Seoul Metropolitan Government (Attorney Kim Chang-chul, Counsel for defendant-appellant)

Seoul High Court Decision 2002Nu1207 delivered on November 21, 2002

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Fact-finding and judgment of the court below

In full view of his adopted evidence, the court below acknowledged the following facts: (a) the redevelopment cooperative, a redevelopment cooperative, a private housing redevelopment cooperative established under the Urban Redevelopment Act, built Samsung apartment and carried out a redevelopment project to sell it to the members of the association after building Samsung apartment to the land and buildings within the project zone after the date of approval for the implementation of the redevelopment project; (b) the plaintiff (appointed party) who succeeded to the status of the association members after acquiring the land and buildings within the project zone after the date of approval for the implementation of the redevelopment project, and the designated parties (hereinafter referred to as the "Plaintiff, etc.") decided to sell the above Samsung apartment 103-500 (hereinafter referred to as the "the apartment of this case") according to the management and disposal plan; (c) Samsung apartment, with the approval for temporary use on April 29, 200, after receiving the approval for temporary use from the buyer, it did not yet carry out the notification for the sale disposal of the association; and (d) the plaintiff, etc. voluntarily reported and paid the acquisition tax as the tax base on June 9, 2000.

As to the apartment of this case, the plaintiff et al.'s assertion that it cannot be deemed that the plaintiff et al. acquired the apartment of this case merely because the above facts are not yet implemented, the court below determined that the acquisition of the real estate subject to acquisition tax under the Local Tax Act includes all cases of the acquisition of real estate through the form of transfer of ownership regardless of whether the ownership is actually complete or not, and that the acquisition is actually acquired even if the registration is not made under the Civil Act, etc., it shall be deemed that the acquisition is acquired. According to Article 73 of the former Enforcement Decree of the Local Tax Act on the time of acquisition (amended by Presidential Decree No. 17052 of Dec. 29, 200) of the former Enforcement Decree of the Local Tax Act on the time of acquisition, it shall be deemed that the actual payment date or the remaining payment date of the contract is the acquisition date of the building constructed with the building permit, and that the use permit was issued (the date of actual use or temporary use approval if it was actually used before the date of issuance of the approval for use) and the apartment of this case.

2. The judgment of this Court

However, in order to meet the taxation requirements of acquisition tax under the Local Tax Act, the existence of real estate subject to taxation under the laws and regulations is insufficient, and its acquisition time should arrive. In the case of redevelopment apartment as in this case, Article 39 (1) and (2) of the former Urban Redevelopment Act (amended by Act No. 6852 of Dec. 30, 2002), the purchaser of a building site or constructed facility under an urban redevelopment project shall acquire the ownership of the building site or constructed facilities on the day following the date of the announcement of the sale in lots, and the ownership of the building site or constructed facilities acquired thereby shall be considered as the replotting under the Land Readjustment Projects Act. Meanwhile, the right to acquire the building site or constructed facilities by providing the previous land and building to the redevelopment association, even if the redevelopment project is implemented, shall be considered as the "right to acquire the real estate" until the ownership of the building site or constructed facilities is acquired (see Supreme Court Decision 90Nu13639, Nov. 23, 193; 2000Du163969, etc.).

Nevertheless, the judgment of the court below which held that the plaintiff et al. acquired the apartment of this case is erroneous in the misunderstanding of legal principles as to taxable objects of acquisition tax and the time of acquisition under the Local Tax Act. Thus, the ground of appeal pointing this out is justified.

3. Conclusion

Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Hong-hoon (Presiding Justice)