[1] Whether the registration of real estate temporarily acquired by a corporation in a large city within five years after its establishment is subject to heavy registration tax (affirmative)

[2] Whether an actual intent to acquire real estate has an impact on registration tax and whether the real estate is subject to registration tax (negative)

[1] According to the purport of Article 138 (1) 3 of the Local Tax Act and Article 102 (2) of the Enforcement Decree of the same Act, all registration of real estate acquired by a corporation within five years after the incorporation into a large city is subject to heavy taxation of registration tax.

[2] The registration tax is a tax imposed on matters concerning the acquisition, transfer, change, or extinction of property rights or other rights in the public register, where the registration or act of registration itself is registered in the public register. Whether the registration or act of registration is lost, invalidated, or substantial rights are subject to the registration tax. Such a legal principle is the same as the case of a heavy taxation under Article 138(1) of the Local Tax Act, and therefore, the issue of whether a corporation in a large city actually intended to acquire the relevant real estate cannot be determined by the above conclusion.

[1] Article 138 (1) 3 of the Local Tax Act, Article 102 (2) of the Enforcement Decree of the Local Tax Act / [2] Article 138 (1) 3 of the Local Tax Act

[1] Supreme Court Decision 87Nu191 delivered on July 7, 1987 (Gong1987, 1344), Supreme Court Decision 87Nu772 delivered on March 22, 198 (Gong1988, 713), Supreme Court Decision 88Nu3031 delivered on June 14, 198 (Gong198, 1045), Supreme Court Decision 89Nu978 delivered on September 12, 1989 (Gong1989, 1510) / [2] Supreme Court Decision 82Nu509 delivered on February 22, 1983 (Gong1983, 609), Supreme Court Decision 85Nu8588 delivered on February 25, 1986 (Gong586, 19585)

Losan Housing Co., Ltd. (Attorneys Yellow-il et al., Counsel for the defendant-appellant)

The head of Gangseo-gu Seoul Metropolitan Government (Attorney Go Young-deok, Counsel for defendant-appellant)

Seoul High Court Decision 95Gu9176 delivered on September 5, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the first ground for appeal

In light of the records, the court below's rejection of the argument that the transfer of ownership in the name of the plaintiff was made in the auction procedure for the real estate of this case due to the plaintiff's employee's mistake in the auction procedure for the real estate of this case is justified, and there is no violation of the rules of evidence such as theory of lawsuit, and there is no error in the rules of evidence against the rules of lawsuit

2. On the second ground for appeal

According to the purport of Article 138 (1) 3 of the Local Tax Act and Article 102 (2) of the Enforcement Decree of the same Act, all real estate registrations acquired by a corporation within five years after the establishment of a large city is subject to heavy registration tax (see Supreme Court Decision 87Nu191 delivered on July 7, 1987, Supreme Court Decision 88Nu3031 delivered on June 14, 198, etc.).

According to the court below's determination, the plaintiff corporation was established on November 3, 1992 by the Seoul Special Metropolitan City on the location of its head office, and completed the registration of ownership transfer on April 15, 1994 on the real estate of this case. Thus, unless the plaintiff corporation completed the registration of ownership transfer on the real estate within five years after its establishment, it cannot be excluded from the subject of heavy registration tax even if the registration was made temporarily in connection with the business of the plaintiff corporation.

In addition, registration tax is a tax imposed on matters concerning the acquisition, transfer, change, or extinction of property rights or other rights in the public register, where such registration or enrollment itself is subject to taxation, and whether such registration or enrollment is void or substantial rights are subject to taxation of registration tax. This legal doctrine applies to heavy taxation under Article 138(1) of the Local Tax Act (see Supreme Court Decisions 82Nu509, Feb. 22, 1983; 85Nu858, Feb. 25, 1986). Thus, whether the Plaintiff corporation actually intended to acquire the real estate of this case can not be determined by the above conclusion.

In the same purport, the judgment of the court below that the real estate registration of this case is subject to heavy registration tax is just, and there is no violation of the substance over form principle, such as theory of lawsuit, nor any misapprehension of legal principles as to heavy registration tax. The argument is without merit.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-sik (Presiding Justice)