Korea Land Trust Co., Ltd. (Law Firm C & C, Attorneys O Tae-hwan et al., Counsel for the plaintiff-appellant)

The head of Yeongdeungpo-si Office

November 11, 2009

Suwon District Court Decision 2008Guhap9691 Decided April 22, 2009

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of acquisition tax of KRW 358,596,480 and special rural development tax of KRW 25,958,480 against the Plaintiff on July 22, 2008 shall be revoked.

3. The total costs of the lawsuit shall be borne by the defendant.

The text shall be as shown in the text.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation on this case is as stated in the reasoning for the judgment of the court of first instance, except that the part of the last line “(b)” of the judgment of the court of first instance, which is not more than “related Acts and subordinate statutes”, is the same as the part of the reasoning for the judgment of the court of first instance, and thus, it shall be cited in accordance with Article 8(2)

2. Parts in height:

“Related Acts and subordinate statutes

It is as shown in the attached Table related statutes.

C. Determination

Therefore, I first examine who is the taxpayer of deemed acquisition tax due to the de facto change of land category of each of the instant land.

① Article 105(5) of the Local Tax Act only provides for the requirements for deemed acquisition, and does not clearly stipulate for taxpayers. Article 105(2) of the same Act provides for the acquisition of real estate which is the object of acquisition tax, if it is actually acquired even though it fails to comply with registration, etc. under the Civil Act or other relevant Acts and subordinate statutes. Here, “actual acquisition” refers to a case which generally fails to meet the formal requirements for acquisition of ownership such as registration but meets the substantive requirements for acquisition of ownership such as payment of price (see Supreme Court Decision 2005Du1360, May 11, 2007). This legal principle also provides that a truster shall apply to deemed acquisition. Accordingly, if a truster is deemed to have de facto acquired an increase in the value of land by constructing a new building at his own expense and effort, it is reasonable to view that a truster, who is a truster, has actually acquired the ownership of the trust property after the change of land category, and that there is no reasonable ground to view that the truster is still an increase in the value of the trust property tax.

Therefore, the defendant's disposition of this case based on the premise that the plaintiff is liable for tax payment is unlawful without considering the remainder of the plaintiff's remaining arguments.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance shall be revoked on the grounds of its conclusion, and it shall be so decided as per Disposition.

[Attachment Form 5]

For the purpose of this title, the majority of the judges