(영문) 광주고등법원 2017.9.28. 선고 2017누4160 판결

The Defendant’s disposition imposing the registration tax and the local education tax as indicated in the attached Table 1 attached hereto against the Plaintiff on February 12, 2013 shall be revoked.

2. The part pertaining to the participation of the above parties among the total litigation costs is borne by the Intervenor joining the Defendant, and the remainder is borne by the Defendant.

Purport of claim and appeal

In addition to the claim stated in the order, the plaintiff filed a claim seeking revocation of the acquisition tax and special agricultural and fishing villages tax imposed on February 12, 2013 by the defendant, and the judgment of the court of first instance was revoked in the judgment before remanding, and the judgment citing the plaintiff's claim was declared in the Supreme Court.

Reasons

1. Scope of the judgment of this court;

On February 12, 2013, the Plaintiff filed a lawsuit against the Defendant seeking revocation of the entire imposition of acquisition tax, registration tax, local education tax, and special rural development tax, which the Defendant filed against the Plaintiff. However, the court of first instance rendered a judgment dismissing all the Plaintiff’s claim. On this matter, the first instance court prior to the Plaintiff’s remanded the appeal and dismissed the remainder of the claim after cancelling the imposition of acquisition tax, special rural development tax, and rural development tax. The Plaintiff and the Defendant filed an appeal against this. The judgment of remand dismissed the Defendant’s appeal, and reversed and remanded the portion of the registration tax and special rural development tax imposition imposition disposition, which are the part against the Plaintiff

Therefore, the object of this court after remand is limited to the claim for revocation of the imposition of the registration tax and local education tax not finalized.

2. Basic facts

A. On December 20, 2004, the land purchase company and the registration of transfer of a lender construction company (hereinafter referred to as the "large-scale construction") purchased the above land from the Korea Land Corporation on the land of Gwangju Mine-gu, a lender, a Rile-to-be apartment house (hereinafter referred to as the "multi-household apartment house of this case") on the ground of 970 large scale 26,950m2 (hereinafter referred to as the "land of this case") of Gwangju Mine-dong, Suwon-dong, and the registration of ownership transfer was made under the name of the Korea Land Corporation on March 2, 2009, since the above land was under the execution of the land development project at the time of implementation, and on April 24, 2009, the registration of ownership transfer under the name of the lender construction was made.

B. The Plaintiff’s guarantee obligation to sell housing on the part of the lender

On August 29, 2006, the Plaintiff entered into an agreement on the guarantee obligation (hereinafter referred to as the “instant agreement on the guarantee obligation for the sale of housing”) with the principal debtor as a lender with respect to the obligation arising from the sales contract for the buyers of the instant apartment that the lender constructed and supplied to the instant land, and issued to the lender on August 30, 2006 the guarantee obligation with the content that the principal debtor is to be constructed, the guaranteed amount is to be KRW 60,585,840,000, the guarantee period is to be from the approval date of the invitation of occupants until the registration date of ownership ownership (including the usage inspection) from the approval date of the invitation of occupants, the guarantee creditor is to be a person who entered into a housing sales contract with the principal debtor

[Terms and Conditions of Guarantee for Sale of Housing]

Article 1(4)(Definition of Terms) of the Guarantee Act refers to the time a guarantee company notifies a guarantee creditor of the suspension of payment of the occupancy deposit or the change of the account for payment of the occupancy deposit due to any of the following causes. In this case, the Guarantee Company may substitute the notification by publishing it in a daily newspaper for the project written notice. (a) The Guarantee Company recognizes that the principal debtor is unable to implement the housing sale contract due to bankruptcy, etc., or the Guarantee Company recognizes that the execution rate verified by the supervisor falls short of 25 percent of the scheduled progress rate (referring to the progress rate in the schedule of the scheduled progress to be submitted to the supervisor by the principal debtor) and there is a request for performance of the guarantee creditor: Provided, That if the Guarantee

Article 3 (Contents of Guarantee) Guarantee Company shall assume the responsibility to sell the house in question or to refund the down payment and the part payment which the principal debtor has paid where the principal debtor is unable to perform due to a guarantee accident pursuant to Article 106 (1) 1 (a) of the Enforcement Decree of the Housing Act.Article 8 (Method of Performance of Guarantee Obligations) (1) The Guarantee Company shall determine the method of performance of the guaranteed obligation within three months from the date of the guarantee accident and notify the guarantee creditor in writing without delay. However, in the case of the performance of the sale in lots, it may be substituted by public announcement.(2) The Guarantee Company shall pay the down payment and the part payment which has already been paid within one month from the date of confirmation if the method of performance of the guaranteed obligation is determined to be refunded: Provided, That if the guarantee creditor fails to submit to the Guarantee Company with the completion of the documents under Article 6, it shall pay within one month from the date of submission to the Guarantee Company.

On August 29, 2006, the Plaintiff was issued by the lender a letter of transfer from August 29, 2006 (hereinafter referred to as the “transfer contract of this case”).

【Transfer Rejection】

1. Where a principal is an implementer of a separate project and becomes unable to continue his/her business any longer due to inevitable reasons, such as dishonor or bankruptcy, he/she shall transfer his/her rights related to the separate project under the condition that your (including a joint guarantor of the same business as designated by your company; hereinafter the same shall apply) bears the responsibility to guarantee several buyers in accordance with the housing construction-related Acts and subordinate statutes, terms and conditions of sale guarantee, or bylaws and procedures of your company (including a joint guarantor of the same business as designated by his/her company; hereinafter the same shall apply) transfer his/her rights related to the separate project to your company:

I agree that I do not have any objection. - (a) I agree that I do not have any objection to the site of the project (referring to the land necessary for the housing project in question, such as the site and other site for donation), and all rights thereto; and (b) all the buildings on the ground and underground such as houses, apartment houses, commercial buildings, model houses, construction management offices, etc. (including buildings under construction) and all the rights thereto. It is all the rights held against the seller and the third party in connection with the sale in lots, such as the right to purchase the sale in lots and the right to receive the sale price. Other rights relating to

D. Conclusion of a housing sale trust contract with the plaintiff and lender

On October 6, 2008, the Plaintiff concluded a housing sale trust contract (hereinafter referred to as the “instant trust contract”) with respect to the new construction of the instant apartment to be constructed and supplied to the lender and the instant land as follows.

【Trust Contract for Sale of Housing】

The truster and the beneficiary construction, and the trustee and the housing guarantee company for the beneficiary shall conclude a trust contract as follows.Article 1 (Trust Real Estate) The trust real estate refers to the land (including access roads and land subject to donation under the approval of the business plan; hereinafter referred to as "land") listed in the attached Table on the trust real estate list in which A (hereinafter referred to as "B") intends to operate the housing construction project after obtaining the approval of the business plan under Article 16 of the Housing Act and the building being constructed or constructed on the same land.The purpose of the trust is to Article 2 (Trust Purpose) of the Trust. The purpose of the trust is to construct the housing and accessory welfare facilities (hereinafter referred to as "housing") on the land and execute the sales contract to the buyer or if A is unable to perform the sales contract, or if B is unable to perform the sales contract, it refers to the plaintiff within this contract with the sales guarantee under Article 106 (1) 1 (a) of the Enforcement Decree of the Housing Act).

C) The management and disposal of trust real estate (including the transfer of ownership of land or housing within this contract) is to be made by way of sale in lots and disposal (including the transfer of ownership of land or housing within this contract).Article 3 (Trust and Public Notice of Trust), Section 3 (Trust and Public Notice of Trust), Section 1 (Trust and Public Notice of Trust) shall be entrusted to B, and Section 2 shall be taken over. (2) After entering into a trust contract with Party A, the registration of transfer of ownership or trust for the land shall be made without delay after the trust is completed, and the cost arising therefrom shall be borne by Party A. Article 5 (Construction and Sale of Housing)(1) shall be constructed and sold as a project operator. (2) If Party A deems it impossible to carry out the sale in lots due to bankruptcy or corporate reorganization procedure, application for commencement of composition, etc., and if Party B or B makes a succession project, such as an application for change of the project operator to whom Party B or B is designated, it shall not be required to raise an objection to the following:

Article 12 (Beneficiary) (1) The original beneficiary of this trust contract shall guarantee the performance of the contract for sale in lots. (2) If the original beneficiary of paragraph (1) falls under any of the following subparagraphs, A shall lose the original beneficiary and the benefit of time. If A is unable to use the guarantee because it falls under the prohibition of or restriction on B's guarantee; 2. If A fails to perform his/her obligations to B's trust property or benefit, he/she shall attach, provisional seizure, provisional disposition, etc.; Article 17 (Payment of Expenses) (1) If A fails to perform his/her obligations to B's trust property, he/she shall pay A's guarantee for sale in lots. (2) If B's refund is impossible due to the impossibility of performing the contract for sale in lots, and the amount of the trust property and substitute payment shall be paid to B's trust property under paragraph (1) and (2).

E. The Plaintiff’s performance of the guaranteed obligation was suspended due to the financial shortage of the construction of the lender, and the seller, the secured creditor, claiming the Plaintiff to discharge the guaranteed obligation along with the report on the occurrence of the guaranteed accident, and it was treated as a guarantee accident, and paid to the 303 household sales contracts totaling KRW 26,094,775,000.

F. Registration of ownership transfer for the apartment of this case

On April 24, 2009, the Plaintiff completed the registration of ownership transfer caused by trust in the future of the Plaintiff pursuant to the instant trust contract on the same day when the registration of ownership transfer was made in the name of a lender, and completed the registration of ownership transfer under the name of a lender on the instant apartment that had been constructed on the ground following a provisional disposition prohibiting the disposal of real estate, upon which the Plaintiff received a decision of provisional disposition prohibiting the disposal of real estate, and completed the registration of ownership transfer under the name of a lender on the registration of the registration of ownership transfer on the ground of the agreement stipulated in the instant transfer contract on April 9, 2010. On the same day, the Plaintiff reported and paid KRW 325,720,020, including the registration tax calculated by reducing the registration tax rate by 50%.

On April 14, 2010, the Plaintiff completed the registration of ownership transfer on the instant land and the instant apartment.

(g) Disposition imposing the Defendant’s registration tax and local education tax;

On November 15, 2012, the Defendant’s Intervenor confirmed the tax base amount of the registration tax of the instant apartment as KRW 26,094,775,00 as guaranteed refunds and KRW 2,453,862,522 as paid to the person holding the attachment right, and notified the Defendant of the result of the tax investigation that the instant apartment should be imposed separately for the unsold portion and the unsold portion. Based on such determination, the Defendant notified the Defendant of the result of tax investigation that the instant apartment should be imposed additionally.

Accordingly, on February 12, 2013, the Defendant imposed on the Plaintiff the amount paid to the guarantee refund and seizure authority as tax base in relation to the instant apartment, and reduced 50% of the registration tax for the buildings sold in lots, and calculated 2% of the unsold portion as tax rate in attached Table 1, and imposed the imposition of registration tax and local education tax in KRW 185,161,160 as shown in attached Table 1 (hereinafter “disposition for imposition of registration tax, etc. of this case”).

(h) Procedures for the previous trial;

On April 3, 2013, the Plaintiff was dissatisfied with the disposition of imposition, including the instant registration tax, and requested the Tax Tribunal to adjudicate, but was dismissed on July 16, 2013.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1-2, 2-2, 3-2, 4-2, 4-2, 5-3, 7-1, 2, 8-2, 9-3, 13-2, and 14-2, and the purport of the whole pleadings

3. The plaintiff's assertion and relevant statutes

A. The plaintiff's assertion

1) Calculation of tax base for the registration tax and local education tax

The defendant imposed the registration tax and local education tax on the apartment of this case by deeming the sum of the amount refunded to the buyer and the amount paid to the seizure right holder as the actual acquisition value recognized on the account book, as the tax base of the registration tax. However, the payment of the refund to the buyer is fulfilled by the plaintiff. The plaintiff's right to claim ownership transfer registration of the apartment of this case under the transfer contract of this case was acquired under the condition that the occurrence of the guarantee accident is suspended, and therefore the refund repayment amount is not considered as the amount actually paid or payable for the acquisition of the apartment of

In addition, the tax base of the registration tax depends on the amount of claims against the plaintiff's principal debtor whose tax base has not been determined at the time of registration, or on the repayment method of the guaranteed debt, the refund repayment amount when the refund is performed, and the current base value when the sale is made is

Therefore, the amount of the refund or the amount of the seizure right holder recorded in the corporate account book can not be the acquisition value.

B) An error in applying the registered tax rate;

The defendant imposed the registration tax by applying 2% of the registration tax rate for the acquisition with compensation. Since the acquisition of the apartment of this case constitutes the free acquisition, 1.5%, which is the tax rate for the free acquisition, should be applied.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

4. Whether the disposition is lawful.

A. Whether the acquisition of the apartment of this case constitutes a gratuitous acquisition

1) Trust under the Trust Act requires a trustee to manage and dispose of a property right for the purpose of trust by transferring a specific property right to a trustee or disposing of such property right, and the trustee does not contribute a price separately for the transfer of the property right as above. If the trustee takes over the trust property and completes the registration of ownership transfer thereof, it shall be deemed as an acquisition of ownership free of charge other than that under subparagraph 1 of Article 131(1)2 of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010; hereinafter the same shall apply). Whether it constitutes acquisition of ownership free of charge should be determined by the substance of grounds for registration or legal relationship, notwithstanding the formal description of the donation, such as an application for registration or the application for registration.

2) The following circumstances revealed through the facts of the instant foundation and the purport of the entire pleadings, namely, ① the instant transfer contract is to secure the Plaintiff’s claim that may arise from the instant housing sale guarantee agreement. After that, the instant trust contract was concluded between the Plaintiff and the lender, which is to secure the Plaintiff’s claim that may arise from the instant housing sale guarantee agreement, and its purpose is to secure the Plaintiff’s claim that may arise from the instant housing sale guarantee agreement. ② The instant apartment under construction along with the instant land is also deemed trust property under the instant trust contract, and the instant apartment is not the instant transfer contract, but the instant apartment is not the instant transfer contract, but the ownership transfer registration was made due to the instant trust contract. ③ Since the Plaintiff could not complete the ownership transfer registration due to the instant apartment as at the time of receiving the provisional disposition and the subsequent transfer registration procedure, it seems reasonable to view the Plaintiff’s transfer of ownership as the ground for acquisition of the instant apartment as the actual order to manage and operate the instant apartment as stipulated in Article 1 of the former Local Tax Act, in light of the legal principles as to the ownership transfer of the instant apartment.

(b) The tax base and registration tax rate;

According to Article 130 of the former Local Tax Act, the tax base of registration tax shall be according to the registered person's report as prescribed by municipal ordinance, and if no report is made or the reported value falls short of the standard market price, the actual acquisition price shall be the tax base: Provided, That in cases falling under Article 111 (5) of the former Local Tax Act, the actual acquisition price shall be the tax base. In cases of gratuitous acquisition, the acquisition resulting from gratuitous acquisition shall be excluded, and in cases of gratuitous acquisition, the amount or the standard market price according to the report filed by the registered person, not the actual acquisition price, shall be the tax base. In addition, the registration tax rate shall be 1.5%

As seen earlier, the Plaintiff’s acquisition of the instant apartment is free of charge, and thus, it is unlawful to impose the registration tax by applying the registration tax rate of 2%, which is the registration tax rate for onerous acquisition, based on the refund money to the buyers who are de facto acquisition value not based on the Plaintiff’s report or the current base price, and the price paid to the seizure right holder, and impose the local education tax based on the registration tax calculated.

5. Conclusion

Therefore, the claim for revocation of the disposition of this case, which is the part other than the part finalized by the judgment of remand, is justified, and the part against the plaintiff, which falls under this part of the judgment of the court of first instance, is unfair. Therefore, it is so decided as per Disposition by the revocation of the disposition of this case, such as the registration tax of this case.