2012Nu4144 Revocation of disposition to impose acquisition tax, etc.

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Attorney ○-○, et al.

OO

Litigation performer ○○○

Suwon District Court Decision 201Guhap3051 Decided December 22, 2011

June 13, 2012

July 11, 2012

1. Of the judgment of the first instance court, the part against the Plaintiff, which orders the revocation below, is revoked. The Defendant’s disposition imposing KRW 1,640,735,770 on December 15, 2010, the principal tax of KRW 1,065,065, 482,030, and special rural development tax of KRW 164,073, and KRW 570, among the disposition imposing KRW 1,06,548, and KRW 200, which was imposed by the Plaintiff on December 15, 2010.

2. The defendant's appeal is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

Acquisition tax 1,640, 735, 770 won, special rural development tax imposed on the Plaintiff on December 15, 2010 by the Defendant,

164, 073, 570 won shall be revoked.

2. Purport of appeal

A. The plaintiff is entitled to Paragraph (1) of this Article.

B. Defendant: Revocation of the part against the Defendant regarding additional tax in the judgment of the first instance, and its revocation

The plaintiff's claim corresponding to the part is dismissed.

1. Details of disposition;

가. 주식회사 □□□는 주택건설 및 부동산 분양업을 목적사업으로 하여 설립된 회사로서, ●●●●●● ( 이하 ' 이 사건 사업 ' 이라고 한다 ) 을 추진하기 위하여 토지거래계 약 허가구역 내에 있는 ●●●토지 196, 360. 9mi ( 이하 ' 이 사건 토지 ' 라고 한다 ) 를 매수하는 내용의 매매계약을 체결하고, 2006. 12. 29. 부터 2007. 4. 19. 까지 매도인에게 잔금 총 177, 107, 748, 105원을 지급하였다 .

B. On March 31, 2006, the Plaintiff was a major shareholder who acquired 37,740 shares out of 74,000 shares of YUD Co., Ltd. and owned 51% shares of 51%. In addition, on October 9, 2007, the Plaintiff acquired 22,260 shares (share 30,000), and owned 60,00 shares in total, and 81.08% shares.

C. Dogsung Co., Ltd. is part of the land in this case, such as △△△△△, etc.

8. A. A. 653- - Part of the same 653-2 land, etc. obtained permission for a land transaction contract on January 30, 2009, and the remainder of land was released from the permission area for land transaction contract under the Ministry of Land, Transport and Maritime Affairs Notice No. 2009- 48 on January 30, 2009.

D. Pursuant to Article 105(6) of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010; hereinafter the same) and Article 78(2) of the former Enforcement Decree of the Local Tax Act (wholly amended by Presidential Decree No. 22395, Sep. 20, 2010; hereinafter the same shall apply), the Defendant deemed that the Plaintiff, who is an oligopolistic shareholder of △△△ Group Co., Ltd., in accordance with Article 78(2) of the former Enforcement Decree of the Local Tax Act, acquired additional shares on Oct. 9, 2007, by acquiring 22,260 shares, at the time of the acquisition of the company’s additional shares, the increased share ratio of 30.08% out of the instant land where the payment of the balance is completed

12. 15. The Plaintiff notified the Plaintiff of the imposition of acquisition tax of KRW 1,640,735,770 on the tax base of KRW 53,274,101,629 (= principal tax of KRW 1,065, 482, 030 + additional tax of KRW 575,253,740) and special rural development tax of KRW 164,073,570 ( = principal tax of KRW 106,548,200 + additional tax of KRW 57,525,370) and KRW 1,804,809,340 on the premise that acquisition tax at the time of the instant disposition was calculated on the condition that the Plaintiff’s additional acquisition of stocks from October 1, 207, which was the filing date of the report (hereinafter “instant disposition”).

【Ground for Recognition: Facts without dispute, Gap evidence Nos. 1 through 6, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings】

2. Whether the instant disposition is lawful

A. In the event that the Plaintiff purchased land within the area subject to permission of land transaction contract or cancelled from the area subject to permission of land transaction contract after paying any balance, acquisition time under the Acquisition Tax Act ought to be deemed the date of permission for land transaction contract or the area subject to permission of land transaction contract rather than the remaining payment date. Therefore, the acquisition date of the instant land by △△ Group, a company after additional acquisition of the Plaintiff’s shares, should be deemed to be the date of Jan. 2, 2009, which is the date of cancellation of permission for land transaction contract or land transaction contract. Thus, the Plaintiff’s acquisition of shares is not a subject of taxation under Article 105(6) of the former Local Tax Act. The instant disposition based on a different premise is unlawful. 2) Since the acquisition of the instant land is subject to tax exemption under Article 106(2) of the former Local Tax Act, it is an oligopolistic shareholder’s first acquisition of shares beyond the scope of taxation under Article 105(6) of the Enforcement Decree of the former Local Tax Act, and thus, it is invalid.

4) Even if the acquisition time of the instant land is deemed the payment date, in light of the fact that imposing tax on the acquisition date as of the permission date of the land transaction contract was a practical practice of the tax authority, there is justifiable reason that the Plaintiff had not reported and paid acquisition tax. The penalty tax portion of the instant disposition is unlawful.

B. Relevant statutes

As shown in the attached Form.

C. Determination

Where any land located within the area subject to permission for a land transaction contract is purchased and any balance is paid, and permission for land transaction contract is revoked, the time of acquisition of such land shall be deemed revoked from the area subject to permission for a land transaction contract.

1. The Plaintiff acquired the instant land around January 1, 2009, which was after October 9, 2007, around the time when the permission for a land transaction contract or the permission for a land transaction contract was cancelled. As such, Article 105(6) of the former Local Tax Act does not apply to the instant land acquisition. Therefore, the instant disposition is unlawful without having to consider the remainder of the Plaintiff’s assertion. The reasons are as follows.

1) According to Article 105(2) of the former Local Tax Act, even if the acquisition of real estate does not perform the registration, etc. under the provisions of relevant Acts and subordinate statutes, such as the Civil Act, in fact, it shall be deemed that it has been acquired if it has been actually acquired. The term “actual acquisition” refers to a case which does not meet the requirements for acquisition of ownership such as the registration, but meets the substantive requirements for acquisition of ownership such as payment of the price (see Supreme Court Decision 99Du5955 delivered on February 9, 2001). A contract for the sale of land within the area subject to permission for a land transaction contract under the National Land Planning and Utilization Act takes effect only with the permission of the competent administrative agency, and is null and void as well as the effect of the claim before obtaining the permission. Even if the purchaser paid the price in full, it is impossible to request the transfer of ownership without obtaining the permission for the land transaction contract (it is different from the case where a claim for the transfer of ownership can be filed, which is a form requirement

2) If a sales contract is null and void due to the failure to obtain permission for a land transaction contract, even if the total amount of the price was paid first, it cannot be deemed that a purchaser has made an obligation to report and pay acquisition tax, and it is possible to impose acquisition tax as it is subject to taxation after obtaining permission for a land transaction contract or cancellation from an area subject to permission for a land transaction contract. In such a case, “the date of acquisition determined as the date of occurrence of a duty to report and pay acquisition tax” under Article 120(1) of the former Local Tax Act is reasonable to regard the date of final and conclusive permission for a land transaction contract or the date of cancellation of an area subject to permission for a land transaction contract. Article 120(1) of the former Local Tax Act provides that a person who acquires an object of taxation shall report and pay the amount of tax calculated by applying the tax rate under Article 112 to the tax base within 30 days from the date of acquisition, as alleged by the Defendant, to obtain permission for a land transaction contract within 10 months prior to the date of acquisition.

3. Conclusion

Of the judgment of the first instance court, the part against the plaintiff as to the main tax of acquisition tax and special rural development tax shall be revoked, and the main tax of acquisition tax and special rural development tax shall be revoked. The defendant's appeal

Justices Kim Jong-hwan

Judges Kim Tae-ho

Judges Lee Dong-dae

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.