(영문) 대법원 2015.6.11.선고 2015두37037 판결

1. Article 13 of the former Restriction of Special Local Taxation Act (amended by Act No. 12175, Jan. 1, 2014); Article 13 of the former Ordinance on the Reduction and Exemption of Do Taxes (amended by Ordinance No. 4295, Dec. 26, 201; hereinafter referred to as the "Ordinance on the Reduction and Exemption of Do Taxes") which provides for the reduction and exemption of local taxes pursuant to delegation of Article 4(1) of the former Restriction of Special Local Taxation Act (amended by Act No. 12175, Jan. 1, 2014) shall be exempted from acquisition tax on real estate acquired by a local government-invested public corporation, etc. established pursuant to the Local Public Enterprises Act to use directly for its unique duties; however, it shall not be exempted from acquisition tax on the portion thereof if any portion of the total assets,

In full view of the language and legislative purport of the relevant provisions, and Article 13(1) and (3) of the instant Ordinance on Reduction and Exemption provide that a local government-invested public corporation may be exempted from acquisition tax on real estate acquired by a local government-invested public corporation to use directly for its unique duties, but the relevant part is excluded from the scope of exemption. In full view of the fact that a local government-invested public corporation directly uses certain real estate for its own duties, it is reasonable to deem that the local government-invested public corporation actually uses it for its own duties as the owner of the real estate or the purchaser of the real estate. Moreover, the existence of grounds for additional collection under Article 13(3) of the instant Ordinance on Reduction and Exemption ought to be individually determined by each person liable for acquisition tax, barring any special circumstance (see Supreme Court Decision 2014Du43097, Mar. 26,

2. The evidence duly admitted by the lower court reveals the following facts.

(1) The Plaintiff is a local government-invested public corporation established by investment in Ansan-si pursuant to the Local Public Enterprises Act and the Ordinance on the Establishment and Operation of the Ansan-si Urban Corporation. On August 10, 201, the Plaintiff acquired the instant land located in Ansan-si 782, Ansan-gu, Seoul-si, Ansan-si in order to promote multi-family housing projects with its unique duties as an investment in kind.

(2) On August 31, 2011, the Plaintiff completed the registration of ownership transfer under the Plaintiff’s name with respect to the instant land, and around that time, reported acquisition tax reduction or exemption to the Defendant on the ground that the acquisition of the instant land is subject to exemption under Article 13 of the Ordinance on Reduction or Exemption.

(3) Since then, the Plaintiff is to promote the housing construction project on the instant land in a public-private partnership manner. On February 16, 2012, the Plaintiff first selected treatment construction consortium as the representative company for the construction of Daewoo Construction Co., Ltd. as a potential concessionaire. On July 5, 2012, the Plaintiff established Asan Rad Co., Ltd. (hereinafter referred to as “a non-party company”) by jointly investing with the treatment construction consortium, and sold the instant land to the non-party company on September 26, 2012.

(4) On November 6, 2012, the non-party company reported the commencement of construction works for the 1,569 apartment units on the instant land and the incidental and welfare facilities construction works, and commenced construction works.

(5) On July 17, 2013, the Defendant issued the instant disposition imposing acquisition tax, etc. on the ground that the Plaintiff did not directly use for its unique duties, such as obtaining approval of the housing construction project plan within one year from the date of acquisition of the instant land, commencing the construction project, etc., and thus, the grounds for additional collection under Article 13(3)

3. Examining these facts in light of the relevant provisions and legal principles as seen earlier, insofar as the Plaintiff sold the instant land to the non-party company and lost its status as the owner, it is reasonable to deem that the ground for additional collection under Article 13(3) of the Ordinance on Reduction and Exemption has occurred since it cannot be deemed that there exists any justifiable ground for not using it directly for its unique duties within one year from the date of acquisition of the instant land, and the non-party company, which the Plaintiff owned some shares, filed a commencement report on the instant land after about one year and four months from the date of acquisition of the Plaintiff’s land

Nevertheless, solely based on its stated reasoning, the lower court determined that the instant disposition was unlawful on the ground that the Plaintiff’s failure to use the instant land directly for its unique duties within one year from the acquisition date of the instant land. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation and application of the grounds for additional collection under Article 13(3) of the Ordinance on Reduction and Exemption of

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