[1] The meaning of "de facto acquisition" under Article 105 (2) of the Local Tax Act

[2] The case holding that in the case where a land seller applied for the approval of use of a building newly constructed on the ground as the name of a joint owner for the purpose of securing the claim for remainder of the land price, and the construction progress rate at the time of the change of the name of the above owner was 98%, the land seller is not the original purchaser due to the new construction of the above building, but does not constitute a de facto owner liable to pay property tax for 1/2 of the above building

[1] Articles 29(1)1 and 105(2) of the Local Tax Act / [2] Articles 29(1)1 and 105(2) of the Local Tax Act, Article 182 of the former Local Tax Act (amended by Act No. 7332 of Jan. 5, 2005) (see current Article 183 of the Local Tax Act)

[1] Supreme Court Decision 99Du5955 delivered on February 9, 2001 (Gong2001Sang, 661) Supreme Court Decision 2000Du2204 Delivered on February 9, 2001 (Gong2001Sang, 670) Supreme Court Decision 200Du499 Delivered on June 12, 2001 (Gong2001Ha, 1636)

(name 1 omitted) The person taking charge of the action of the deceased (name 2 omitted)

Changwon Market (Attorney Kim Tae-tae, Counsel for the defendant-appellant)

Busan High Court Decision 2004Nu2813, 2820 decided January 21, 2005

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Article 29(1)1 of the Local Tax Act provides that a taxpayer shall be liable to pay acquisition tax when acquiring an object of taxation, and Article 105(2) of the Local Tax Act provides that a taxpayer shall be deemed to have acquired real estate even if a taxpayer fails to perform registration, etc. under the provisions of relevant Acts and subordinate statutes, such as the Civil Act. Here, “ de facto acquisition” refers to a case where a taxpayer fails to meet the formalities requirements for acquisition of ownership such as registration, but satisfies the substantive requirements for acquisition of ownership such as payment of price (see Supreme Court Decision 200Du499, Jun. 12, 2001).

According to the facts established by the court below, the plaintiff appears to have filed an application for change of the name and approval for use of the building of this case newly constructed for the purpose of securing the claim for purchase price of land against the non-party 1 corporation (hereinafter referred to as "non-party 1 corporation"), which is the previous owner, in the name of the owner. As such, at the time of change of the owner's name, the construction work rate of new construction of the building of this case has already reached 98%. Thus, even if the new construction was completed and the changed owner's name was applied for approval for use of the building of this case under the name of the plaintiff and non-party 2, who is the previous owner's owner, the original purchaser due to the new construction of the building of this case, is not the plaintiff but the previous owner's owner. Furthermore, it is difficult to view that the plaintiff actually acquired the 1/2 share of the 1/2 of the building of this case from the non-party

Therefore, the decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to acquisition tax, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

According to the facts established by the court below, as of each tax base date of the property tax of this case, the plaintiff was not registered as the owner of the 1/2 shares among the buildings of this case, and the original acquisitor of the building of this case is not the plaintiff, but the plaintiff, the changed owner of the building of this case, and it is difficult to deem that the plaintiff succeeded to the 1/2 shares among the buildings of this case from the non-party 1 and acquired the 1/2 shares from the non-party 1 merely because the above application was filed for change of the owner of the building name and approval for use of the building of this case. On the other hand, no data was found to recognize that the plaintiff acquired the above shares from the non-party 1 as of each tax base date of this case. Thus, the plaintiff cannot be

Therefore, the disposition of imposing the property tax of this case is unlawful, and the judgment of the court below to this purport is just, and there is no error of law such as misunderstanding of legal principles as to the property tax.

3. Conclusion

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

Justices Jeon Soo-ahn (Presiding Justice)