A. The meaning of “owner” under Article 109(2) of the former Local Tax Act

B. Whether Article 2 subparagraph 2 of the former Ordinance on Exemption from Taxation on Land and Buildings within the Redevelopment Area of Seoul Special Metropolitan City violates Article 109 (2) of the former Local Tax Act

A. In a case where an owner of an urban redevelopment project purchases a building facility in a site, as in the case of a site, it shall be considered as a substitute lot, and the reason why acquisition tax is not imposed is that the nature of the acquisition is treated as having the identity with the previous right by legal conversion of the rights to the previous site or constructed facilities. The owner under Article 109 (2) of the former Local Tax Act (amended by Act No. 4269 of Dec. 31, 190) intends to support the smooth execution of the above project in a tax manner. In a urban redevelopment project, the owner of a building site or constructed facilities in the relevant redevelopment area shall make an application for parcelling-out under Article 40 of the Urban Redevelopment Act as the owner of the building site or constructed facilities within the relevant redevelopment area and is entitled to purchase a building site or constructed facility by the disposal of the land by the project implementer in accordance with the management and disposal plan. The above provisions of the Local Tax Act do not impose any restriction on the scope of the owner of the building site or constructed facilities (However, it should be freely transferred the ownership of the building site or constructed facilities.

B. Article 2 subparagraph 2 of the former Act on Exemption from Taxation of Market Price on Land and Buildings within the Redevelopment Zone (Ordinance No. 2394 of Jan. 10, 1989) provides that a person eligible for exemption from acquisition tax on the land or constructed facilities acquired by the implementation of the redevelopment project shall be limited to the owner at the time of the approval for the implementation of the redevelopment project, which is a superior corporation, to the extent that it unfairly limits the scope of the owner who is the basis for non-taxation under Article 109 (2) of the former Local Tax Act (amended by Act No. 4269 of Dec. 31, 190) and thus invalid.

Article 109(2) of the former Local Tax Act (amended by Act No. 4269 of Dec. 31, 1990) Article 2(1)6 of the Urban Redevelopment Act (amended by Act No. 4269 of Dec. 31, 199) Article 40 and Article 49 of the former Urban Redevelopment Act (Ordinance No. 2394 of Jan. 10, 1989) Article 2 subparag. 2 of the former Ordinance on Exemption from Taxation

Plaintiff (Appointed Party)

Head of Seodaemun-gu Seoul Metropolitan Government Attorney Yellow-gu, Counsel for the defendant-appellant

Seoul High Court Decision 92Gu29674 delivered on March 18, 1993

The judgment below is reversed and the case is remanded to Seoul High Court.

The defendant's attorney's grounds of appeal are examined.

1. In order to promote urban redevelopment, Article 2 subparagraph 2 of the Municipal Tax Act (amended by Ordinance No. 2394, Jan. 10, 1989; Ordinance No. 2687, Dec. 31, 1990; Ordinance No. 2394, Feb. 2, 1990; Ordinance No. 2394, Feb. 2, 199) provides that the owner of the land and building acquired by the first sale from the developer as prescribed by the Urban Redevelopment Act, at the time of the authorization for the execution of the redevelopment project, shall be exempted from the acquisition tax, etc. on the land and building acquired by the sale of the redevelopment project according to the execution of the redevelopment project.

According to the reasoning of the judgment below, prior to determining the invalidity of the above Ordinance, the court below acknowledged that prior to the determination of the invalidity of the above Ordinance, the plaintiff (appointed party) and the designated parties succeeded to the right to purchase each apartment house of this case from the members at the time of authorization after the date of authorization of the project implementation for the redevelopment project implemented by the ○○ △△△-Wol District Housing Redevelopment Cooperatives (amended by Act No. 3878 of Dec. 31, 1986) and acquired it from the above association on June 8, 191. The court below determined that the disposition of this case based on the above Ordinance was unlawful since Article 2394 of the Ordinance applicable to the disposition of this case was in violation of Article 109 (2) of the Local Tax Act (amended by Act No. 3878 of Dec. 31, 1986) and did not impose acquisition tax as a matter of course pursuant to Article 4269 of the same Act.

2. Article 109(2) of the above Local Tax Act provides that acquisition tax shall not be imposed in the case where the owner receives a substitute land due to the execution of a land readjustment project under the Land Readjustment Projects Act, a redevelopment project under the Urban Planning Act, and a development project under the Urban Planning Act, and a project executor acquires a land allotted in recompense for development outlay or reserved land. Article 2(1)6 of the Urban Planning Act provides that "realization project" used in this Act refers to an urban redevelopment project implemented under the Urban Redevelopment Act, and Article 49(1) and (2) of the Urban Redevelopment Act provides that a person who purchases a site or constructed facility according to the management and disposal plan for a redevelopment project shall acquire the ownership of the site or constructed facility on the date following the announcement of the sale in lots, and the site or constructed facility acquired by the sale in lots shall be

As above, in a case where an owner of an urban redevelopment project purchases a building facility in a site, as in the case of a site, the acquisition tax is not imposed by deeming it as a substitute lot. The purpose of the acquisition is to taxly support the smooth implementation of the above project. The owner referred to in the above provisions of the Local Tax Act refers to the owner of a site or building facility within the concerned redevelopment area who is eligible to purchase a site or building facility by filing an application for parcelling-out under Article 40 of the Urban Redevelopment Act with the owner of the site or building facility within the relevant redevelopment area in accordance with the management and disposition plan. The above provisions of the Local Tax Act do not impose any restriction on the scope of the owner of the land or building facility owned by him/her while implementing the redevelopment project. In full view of the fact that the ownership of the building site or building facility owned by him/her can be freely transferred even during the redevelopment project, and the purchaser bears acquisition tax therefrom, it shall not be construed as not only the owner at the time of the project implementation authorization but also the person who acquires the building site or building facility by acquiring the ownership.

Nevertheless, Article 2394 of the above Ordinance provides that a person eligible for exemption from acquisition tax on the land or constructed facilities acquired by the implementation of a redevelopment project shall be limited to the owner at the time of approval for the implementation of the redevelopment project, and it shall be null and void because it unfairly limits the scope of the owner who is the basis for non-taxation under the above Local Tax Act. Therefore, it is proper for the court below to determine that Article 2394 of the Ordinance is null and void in the same purport.

3. However, the meaning of the above municipal ordinance null and void is that the association members who acquired a site or construction facility within a development project area after the approval for the implementation of the redevelopment project and became the owner shall be exempted from the object of exemption under the municipal ordinance, notwithstanding the fact that the plaintiff (appointed party) and the designated parties are not individually determined whether or not the above-mentioned owner's eligibility is illegal. Thus, the court below decided that the disposition of this case was unlawful on the ground that the acquisition tax was not imposed solely on the succession of the right to purchase the apartment of this case from the union members at the time of the approval for the redevelopment project, because the court below erred in the concept of the owner, which is the basis for the exemption from acquisition tax, or extended the concept of the owner's right to purchase the apartment of this case to the successor, and the above error of the court below affected the conclusion of the judgment. Thus, this point is with merit.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Chief Justice Yoon Jong-ho (Presiding Justice) (Presiding Justice)