Whether the aggregate land tax may be imposed on the land allotted by the land partition rearrangement cooperative (negative)

The land partition rearrangement cooperative may act only within the scope of the project period set by landowners to achieve the purpose of increasing the utility of land site and maintaining public facilities, and the acquisition of ownership with respect to the land owned by the members of the cooperative to reduce the land for the purpose of raising the project funds shall not be imposed on the same purport as acquisition tax is imposed on the acquisition of land formally by the implementer under Article 109 (3) of the Local Tax Act on acquisition tax, because it is difficult to smoothly carry out the project because it is difficult for the land owner to realize the smooth execution of the project because it is not clear who owns the land originally if the land is allotted by the members of the cooperative, and it is difficult to complete the ownership transfer registration immediately from the purchaser in the future

Articles 234-8 and 234-9 of the Local Tax Act

The Land Partition Adjustment Association of the East District;

Kim Sea Market

1. The Defendant’s imposition of KRW 22,821,740 in aggregate land tax against the Plaintiff on October 5, 1991, respectively, of KRW 3,154,170 in aggregate land tax, and of KRW 4,564,340 in amount of education tax, shall be revoked.

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

The same shall apply to the order.

1. Details of the imposition;

If Gap evidence Nos. 1 (the register of association), Gap evidence Nos. 2 (the notice of payment of aggregate land tax), Eul evidence Nos. 1 (the authorization for the establishment and implementation of the land subdivision rearrangement association in the East Asian Urban Planning Zone), Eul evidence Nos. 2-1, 2 (the scheduled land substitution plan and the notification of confirmation of the land substitution plan and the confirmation of the land recompense for development outlay), Eul evidence Nos. 3 (the notification of collection resolution and taxation statement) are combined with the whole purport of the pleadings, the plaintiff union did not dispose of the whole purport of the pleadings among the 31,081.5 square meters of land in the 31,081.8 square meters of the land which was authorized as the land substitution land under the East Asian District Land Readjustment Project Act (the land of this case), and the defendant did not recognize the fact that the plaintiff union actually owned the land of this case, as the order of the plaintiff on Oct. 5, 191.

2. Whether the disposition of imposition is lawful.

A. Both claims

The defendant asserts that the disposition of this case is lawful, that the plaintiff union's holding 90 cases, including the land in this case, 33,003.9 square meters, among the land in the partitioned rearrangement district, for which the approval of the plan for the land readjustment project was obtained from the Do governor on December 31, 1987, the land in this case was disposed of for 14 cases 4,922.4 square meters, and held 76 cases, 28,081.5 square meters on June 1, 1991, which is the tax base of global income tax, and the plaintiff union did not belong to the person who actually owns the land in this case pursuant to Articles 234-8 and 234-9.1 of the Local Tax Act.

The plaintiff's association asserts that even if it is established for the sound development of the city as prescribed by the Land Readjustment and Rearrangement Projects Act for the project, it can not actually own the land secured by the recompense for development outlay, and it does not own the land in order to cover construction expenses, etc. for the project above, and the proceeds from the sale of the land secured by the development recompense for development outlay shall not be used for purposes other than the relevant land rearrangement project, and in Article 76-2 (1) and (2) of the Land Readjustment and Rearrangement Projects Act, Article 107 subparagraph 1 of the Local Tax Act provides that the acquisition of the real estate by the non-profit entrepreneur as prescribed by the Presidential Decree for the purpose of the project shall not be imposed on the real estate to be directly used for the project, in light of its legislative purport, etc.

B. Review of relevant laws and regulations

First, Article 234-8 of the Local Tax Act provides that the aggregate land tax shall be imposed on all land under the Cadastral Act. Article 234-9(1) of the Act provides that a person who actually owns land under the provisions of Article 234-8 as of the assessment basis date of the aggregate land tax shall be liable to pay the aggregate land tax. Article 234-8(3) provides that if it is impossible to confirm the de facto owner as of the assessment basis date of the aggregate land tax because ownership is unclear, the actual owner is liable to pay the aggregate land tax, the user shall pay the aggregate land tax.

In addition, Article 109(3) of the Local Tax Act on acquisition tax provides that acquisition tax shall not be imposed in cases where the owner receives substitute land or a project implementer acquires land allotted by recompense for development outlay or reserved land as a result of the execution of the project on January 2, 200 and the land readjustment project under the Land readjustment and Rearrangement Projects Act. This is the case where the owner acquires land in recompense for development outlay or reserved land due to the reduction of union members and it is different from union members, but it cannot be viewed as a new acquisition because the association composed only of union members acquires it, and it does not constitute a real acquisition

Article 2 (1) 1 of the Landalization and Rearrangement Project Act means the business concerning the exchange, division, or other division of land, alteration of land category or form and quality, or the installation and alteration of public facilities to be conducted under the provisions of this Act in order to enhance the utility as a site and maintain public facilities. Article 54 (1) of the Act provides that a developer may set a certain land as a land substitution land or reserved land without fixing it as a substitute land in a land substitution plan for the purpose of meeting the rules, articles of incorporation, implementation rules, or business plan. Article 66 (1) of the Act provides that the developer shall dispose or manage reasonably the land development recompense land, etc. according to the purpose and method as stipulated by the regulations, and Article 76-2 (1) of the Act provides that the proceeds accruing from the land rearrangement and rearrangement project, such as the proceeds from the sale of the land secured by the development recompense land, etc. shall not be used for any other purpose than the said rearrangement and rearrangement project concerned, and that the developer shall use the proceeds from the execution of the land substitution and rearrangement project within the land concerned after the completion of the land substitution plan.

(c) Markets:

According to Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 1, 2-2, and Eul evidence Nos. 3 and Eul evidence Nos. 2-3, and testimony of Chonhee-si, which were above, Kimhae-si only after confirmation and public notification as residential area under the Urban Planning Act with respect to urban areas including the land in this case, and no development as financial resources relationship, the defendant disposed of the land of 170,542 square meters as of December 31, 1987 by the owners of 170,542 square meters of land, including Kimhae-si, Dong-dong, Seowon-dong, Sejong-dong, and Sejong-dong, who decided the land readjustment project association and started the project with the approval of the plan for the land readjustment and rearrangement project from the Mayor/Do governor around 47.5 percent, the road is 29.89 percent for public use, 32.89 percent for the remaining land development recompense, 198 square meters of the aggregate land tax as of 20.3

Meanwhile, according to Article 182(1) of the Local Tax Act (amended by Presidential Decree No. 4128 of Jun. 16, 1989), the Defendant’s association is obligated to pay property tax to the Plaintiff association’s actual owner of the land as of the property tax assessment basis date. As to whether the Plaintiff association can be deemed to actually own the land as provided in Article 234-9(1) of the Local Tax Act in light of the pertinent facts and the statutory system and legislative intent, the Plaintiff association’s purpose of imposing aggregate land tax on the land owner is to prevent the Plaintiff’s actual owner of the land from disposing of the land at the same time as the land owner’s land ownership, and thus, to ensure that the land owner’s association does not actually own the land within the scope of its original purpose and to ensure that the land owner’s land can not be seen as being disposed of within the scope of its original purpose and to ensure that the Plaintiff association’s actual owner of the land can not own the land as stipulated in the Local Tax Act.

3. Conclusion

Thus, the plaintiff's claim that the cancellation of the disposition of this case is reasonable, and it is so decided as per Disposition.

Judges Kim Jong-sik (Presiding Judge)