2015Nu500 Revocation of disposition of imposition, including acquisition tax

Korea Housing Guarantee Corporation

1. The head of Gwangju Metropolitan City North Korea;

2. The head of Gwangju Metropolitan City Mining Area;

Gwangju Metropolitan City Mayor

Gwangju District Court Decision 2013Guhap10762 Decided December 11, 2014

April 30, 2015

May 14, 2015

1.The judgment of the first instance shall be modified as follows:

A. On February 12, 2013, the imposition of acquisition tax and special rural development tax listed in attached Table 1 Paragraph (1) of the attached Table 1 by the head of the north-gu Seoul Metropolitan City, and the imposition of acquisition tax and special rural development tax listed in paragraph (2) of the same Table by the head of the Si/Gu of the

B. The plaintiff's remaining claims against the head of Gwangju Metropolitan City Mine are dismissed.

2. Of the total litigation costs, the portion arising between the Plaintiff and the head of the North Gwangju Metropolitan City North Korea shall be borne by the head of the relevant Si/Gun/Gu. 50% of the portion arising between the Plaintiff and the head of the relevant Si/Gun/Gu of Gwangju Metropolitan City shall be borne by the Plaintiff; 50% of the remainder shall be borne by the head of the relevant Si/Gun/Gu; 40% of the portion arising from participation

The judgment of the first instance shall be revoked. On February 12, 2013 and 201, the imposition of acquisition tax, registration tax, local education tax, and special rural development tax listed in attached Table 1 (1) by the head of the north-gu Seoul Metropolitan City (hereinafter referred to as the "head of the north-gu") and the imposition of acquisition tax, registration tax, local education tax, and special rural development tax listed in attached Table 1 (2) shall be revoked.

1. Basic facts

A. As to the imposition of the head of Defendant North Korea

1) The Plaintiff and Dong government Construction Co., Ltd. entered into a housing sale trust contract and the ownership transfer registration Plaintiff entered into a housing sale trust contract with Dong state Construction Co., Ltd. (hereinafter referred to as Dong state Construction), with respect to the new construction of housing constructed and supplied to Dong state on the 177-2 forest land, 13,804 square meters, and 40 lots (hereinafter referred to as “the instant land”). On the same day, the Plaintiff completed the registration of ownership transfer for the land of this case 1 under the name of the Plaintiff on the same day.

【Trust Contract for Sale of Housing】

The truster and the construction of a beneficiary who is concurrently holding the same office as well as the trustee and the joint owner of a house shall conclude a trust contract as follows: Article 1 (Trust and Real Estate within this Agreement refers to the land entered in the separate list of real estate (including access roads and donated land under the approval of the project plan; hereinafter referred to as "land") on which a housing construction project is intended to be conducted with the approval of the project plan under the provisions of Article 16 of the Housing Act and buildings constructed or constructed on the same land.The purpose of the trust Article 2 (Trust Purpose) is to construct housing and appurtenant welfare facilities (hereinafter referred to as "housing") and to sell the housing to several buyers or to whom A is unable to perform the sale contract under the provisions of Article 106 (1) 1 (a) of the Enforcement Decree of the Housing Act, and the person designated by the project operator as the trustee or successor of the real estate shall not be entitled to make an application for sale or sale of the real estate at the value of the real estate for the purpose of performing the sale or sale guarantee (referring to the plaintiff within the contract) and the sale of the real estate:

(1) The beneficiary of this trust contract shall guarantee the performance of the contract for sale in lots. (2) If a beneficiary of this contract under paragraph (1) falls under any of the following cases, A shall lose the original right to benefit and the benefit accruing from the contract for sale in lots. (2) If a beneficiary of this contract falls under any of the following cases, A shall lose his/her original right to benefit and the benefit accruing therefrom;

(ii)delivery of a letter of transfer for such construction;

On November 1, 2006, the Plaintiff received a letter of transfer from the construction of the Dong state with the following contents:

【Transfer Rejection】

1. If the principal, as an implementer of a separate project, becomes unable to continue his business any longer due to inevitable reasons such as dishonor or bankruptcy, he shall transfer his rights related to the separate project under the condition that he bears the responsibility to guarantee the buyer 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 the joint guarantor of the same business designated by your company; hereinafter the same shall apply) to He under the condition that he bears the responsibility to guarantee the buyer.2. In addition, in the event he changes the name of the proprietor of the separate project or continues the separate housing project, he shall, as a matter of course, be deemed to have obtained his consent or consent, and he shall undertake that he does not raise any objection. - (A) He shall thereafter have all rights to the site of the project (referring to the land necessary for the housing project concerned, such as the site and other site for donation), and all rights to it. All buildings (including buildings under construction), such as houses, apartment buildings, model houses, construction management stations, rights to the land and all other buildings related to the sale proceeds and sale proceeds and sale proceeds.

3) The Plaintiff’s guarantee obligation to sell housing

On November 2, 2006, the Plaintiff entered into an agreement with the Dong government construction to guarantee the sale of housing (including the transferee of the right to purchase housing) with the party who entered into a housing sale contract with the main debtor as follows, with respect to the obligation under the sales contract for the buyers of the third lender, the third apartment (375 households) of Gwangju Northern-gu, which constructed and supplied the land of this case by the Dong government construction, the main debtor is the Dong government construction, the guaranteed amount is 48,745,450,000 won, the guarantee amount is 48,745,450,000 won, and the guarantee period is from the approval date of the tenant recruitment announcement to the date of registration of ownership preservation (including the usage inspection).

[Terms and Conditions of Guarantee for Sale of Housing]

Article 1(4)(Definition of Terms) of the Guarantee Act refers to the time the Guarantee Company notifies the 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 business written notice. (a) The Guarantee Company recognizes that the Principal Obligor is unable to perform the housing sale contract due to bankruptcy, etc., or the Guarantee Company recognizes that the rate of performance verified by the supervisor falls short of 25 percent of the estimated rate of performance (which refers to the rate of progress in the schedule to be submitted to the supervisor by the Principal Obligor). However, if the Guarantee Company recognizes that there is no prearranged Residents, it does not require a request for performance.The Guarantee Company of Article 3 (Contents of Guarantee Obligations) shall bear the responsibility for paying the down payment and the part payment which has been paid within 1 month from the date of performance of the Guarantee Company's performance of the Guarantee Contract, and if the Principal Obligor is unable to perform by the Guarantee Company within 3 months from the date of performance.

4) Performance of the obligation to sell a house;

The Plaintiff suspended construction due to the financial shortage of the city construction, and the seller for sales in lots, a guarantee creditor, filed a claim with the Plaintiff for the performance of the guaranteed obligation along with the report on the occurrence of a guarantee accident. On January 29, 2009, the Plaintiff treated the guarantee accident as a guarantee accident and paid a total of KRW 19,379,90,000 to the seller for sales in lots of 184 households until April 3,

After that, on February 4, 2013, the Plaintiff completed the registration of ownership transfer on the land No. 1 of this case in the name of Daesung Co., Ltd.

5) Imposition of acquisition tax, etc. by the head of Defendant North Korea

On November 15, 2012, the Intervenor’s Intervenor (hereinafter referred to as the “ Intervenor”) determined the acquisition value of the instant land No. 1 as KRW 3,986,531,220 as the tax base for land portion and notified the head of Defendant North North North Korea of the result of the tax investigation that acquisition tax should be imposed (in the case of the unsold portion and the unsold portion, 50% is not reduced or exempted) by multiplying the acquisition value of the instant land by the land ratio of KRW 19,379,90,00,000, which is the refund amount of KRW 19,379,900.

Accordingly, on February 12, 2013, the head of Defendant North Korea notified the Plaintiff of the imposition of acquisition tax and special rural development tax totaling KRW 106,275,840 on the land of this case as shown in attached Table 1(1).

B. Regarding the disposition of the head of Defendant Mine

1) The Plaintiff’s agreement on the guarantee obligation to sell housing to the lender construction corporation

On August 29, 2006, the Plaintiff entered into an agreement with the lender Construction Co., Ltd. (hereinafter referred to as the "Large City Construction") on the guarantee obligation between the lender and the buyer who entered into a housing sale contract with the main debtor (including the transferee of the right to purchase housing) on August 30, 2006, with respect to the obligations arising from the sales contract for the buyers of the Gwangju Mine-gu lender Pnean apartment (442 households) constructed and supplied by the lender to the lender for construction of the main debtor, the guarantee period is 60,585,840,000 won, the guarantee period is 60,585,840,000 won, the guarantee period is 60,585,840,000 won, the guarantee period is 50,000 won from the date of approval for the invitation of occupants, the guarantee creditor is a person who entered into a housing sale contract with the main debtor (including the transferee of the right to purchase housing).

2) On August 29, 2006, the Plaintiff issued a letter of transfer from the lender construction to the lender with the same content as that of the above 1. A. 2 (b) (hereinafter the above letter of transfer is referred to as the "statement of transfer" and the transfer agreement based thereon is referred to as the "transfer agreement of this case").

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

On October 6, 2008, the Plaintiff concluded a housing sale trust contract with the same content as the above 1. A with respect to the new construction work of a lender-to-be apartment building that constructed and supplied the land of this case to the lender construction and the second land of this case.

4) The Plaintiff’s performance of the guaranteed obligation was suspended due to the financial shortage of the construction of the lender, and the parcelling-out contract, the secured creditor, filed a claim with the Plaintiff for the performance of the guaranteed obligation along with the report on the occurrence of the guaranteed accident, and was treated as a guarantee accident, and paid KRW 26,094,775,000 in total to the 303 unit buyers until March 13, 209

5) The registration of ownership transfer for the land No. 2 and buildings not completed on the ground of this case

On April 24, 2009, the Plaintiff completed the registration of ownership transfer based on the above trust, and completed the registration of ownership transfer on April 9, 2010 by winning a favorable judgment upon filing a lawsuit for the registration of ownership transfer based on the agreement on the above transfer angle with respect to the buildings not completed (hereinafter referred to as the “un completed buildings in this case”). On the same day, the Plaintiff calculated the tax base of the buildings in this case as appraisal value at KRW 27,143,335,830, and 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 land of this case 2 in the future.

6) Imposition of acquisition tax, etc. by the head of the defendant mine

On November 15, 2012, an intervenor determined the tax base amount of registration tax of the building not yet completed in this case to KRW 26,094,775,00 as guaranteed refunds, and KRW 2,453,862,52,522 as paid to the seizure authority, based on the amount of KRW 28,51,497,522. The intervenor decided the tax base amount of acquisition tax of the second land in this case to KRW 6,869,490,303 by multiplying the land ratio ( approximately 24.06%) by the said tax base amount of acquisition tax by KRW 28,51,497,522, and notified the head of the defendant mining office of the result of the tax investigation that the portion of the second land in this case is unsold in lots shall be reduced by 50% of acquisition tax and the portion of unsold in lots shall be imposed without reduction of the portion of acquisition tax.

Accordingly, on February 12, 2013, the head of the Defendant Mine Office notified the Plaintiff of the imposition of acquisition tax and special tax for rural development (each land portion), registration tax and local education tax (each building portion), as shown in attached Table 1(2), as to the land No. 2 and buildings not yet completed, KRW 185,161,160, respectively.

(c) Procedures of the previous trial;

On April 3, 2013, the Plaintiff filed a petition with the Tax Tribunal for a trial against each disposition stated in the Defendants’ purport of the claim, but was dismissed on July 16, 2013.

[Reasons for Recognition] Facts without dispute, Gap's statements in Gap's 1 to 8, 12 to 14 (including each number), the purport of the whole pleadings

2. The plaintiff's assertion and relevant statutes

A. The plaintiff's assertion

1) As to the imposition of acquisition tax and special rural development tax by the Defendants

① Since the Plaintiff acquired each of the instant land Nos. 1 and 2 on the grounds of trust, Article 110 subparag. 1 of the former Local Tax Act (amended by Act No. 10221, Mar. 31, 2010; hereinafter the same) is exempt from taxation.

② The Plaintiff did not actually acquire the land of the instant No. 1 and No. 2. The Plaintiff’s payment of the refund to the buyer was performed with the duty of sale guarantee, and the Plaintiff’s delivery of a letter of transfer from the construction company is to secure the subrogation payment and the expenses incurred in performing trust affairs following the performance of the guaranteed obligation, and the disposal of the instant No. 1 and No. 2 land is merely an exercise of the right of self-help

Therefore, the Defendants’ imposition of acquisition tax and special rural development tax on the premise that the Plaintiff acquired substantial ownership of the land Nos. 1 and 2 of this case is unlawful.

2) As to the imposition of the registration tax and local education tax by the head of Defendant mine

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

The head of the defendant mine in this case imposed the registration tax and local education tax by deeming the sum of the refund amount to the buyer and the amount paid to the seizure right holder for the remaining buildings in this case as the actual acquisition value recognized on the account book. However, the plaintiff's payment of refund money to the buyer is fulfilled the guarantee obligation, and the plaintiff's claim for transfer registration of ownership of the building in this case was acquired on the condition that the occurrence of the guarantee accident occurs under the transfer agreement in this case, so the refund repayment amount is not the "amount actually paid or payable for the acquisition of the completed buildings in this case".

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 head of the defendant mine office imposed the registration tax by applying 2% of the registration tax rate for onerous acquisition. Since the acquisition of buildings not completed in this case constitutes gratuitous acquisition, the tax rate (15/1,000) equivalent to the gratuitous acquisition should be applied.

B. Summary of the defendants and intervenors' assertion

(1) Article 269(5) of the former Local Tax Act provides that acquisition tax liability shall accrue on the assumption that actual acquisition occurs in the process of implementing a guarantee for sale of housing. Therefore, regardless of whether a trust is registered, the foregoing provision shall apply to the acquisition of housing and land annexed thereto for the performance of a guarantee for sale of housing.

② The Plaintiff, by performing the refund to the buyer under the agreement on the guarantee obligation to sell housing, acquired the actual ownership of the business site, building, etc. in accordance with the letter of transfer beyond the trustee’s position.

C. Relevant statutes

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

3. Whether the disposition is lawful;

A. As to the imposition of acquisition tax and special rural development tax by the Defendants

1) Whether Article 269(5) of the former Local Tax Act applies regardless of whether the registration of trust is made or not

A) Article 110 subparag. 1 of the former Local Tax Act provides that acquisition tax shall not be imposed on the acquisition of trust property by a trust (limited to a trust under the Trust Act, the trust registration of which is accompanied by a trust) where the trust property is transferred from the truster to the truster, acquisition by the trustee where the trust property is transferred from the truster to the truster due to the termination or termination of the trust, and acquisition by the acquisition (c) where the trust property is transferred from the trustee to the truster due to the replacement of the trustee. The above provision is also known in the title (non-taxation on acquisition, etc. of the form of ownership). As can be seen in the above provision, acquisition tax, etc. must be imposed as a matter of course on the trust property when the trust property is transferred to the trustee within and outside the private law upon the completion of the ownership transfer registration, but considering the fact that the trustee can manage and dispose of the trust property only within the scope of restrictions prescribed by the Trust Act or trust contract, it would not impose acquisition tax by formally acquiring it under the tax law.

B) Meanwhile, Article 269(5) of the former Local Tax Act provides that "50/100 of the acquisition tax and registration tax shall be reduced for houses (excluding facilities sold to the general public among welfare facilities) and land annexed thereto acquired by the Korea Housing Guarantee Co., Ltd. under the Housing Act to implement a guarantee for sale of housing under Article 77(1)1 of the same Act." This provision is newly established on December 29, 2000 to exempt or reduce the total amount of acquisition tax and registration tax for houses and land annexed thereto acquired by the Plaintiff to implement a guarantee for sale of housing for the purpose of social welfare and stabilization of people's lives by encouraging a guarantee for sale of housing.

C) In light of the above legislative intent and legislative history of Articles 110 subparag. 1 and 269(5) of the former Local Tax Act, and Article 110 subparag. 1 of the former Local Tax Act does not explicitly stipulate that the application of Article 269(5) of the same Act shall be excluded. In the event that the Plaintiff is entrusted with a housing construction site by a project proprietor pursuant to Article 40(6) of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009), the Plaintiff bears a limitation on managing trust property within the scope of trust purpose as stipulated in trust contract, and it is not necessarily premised on the actual acquisition of land, so it is difficult to view that Article 269(5) of the former Local Tax Act should be applied regardless of whether trust registration is registered (in this case, it is reasonable to deem that this part of the claim by the Defendants and the Intervenor is without merit.

2) Whether the Plaintiff newly acquired the instant land Nos. 1 and 2 due to the repayment of refund

As seen earlier, the Plaintiff agreed to transfer all rights related to the above housing project’s project site and its related buildings (including buildings under construction), including all rights, housing, apartment, and shops (including buildings under construction), under the condition that the Plaintiff bears the responsibility for the sale guarantee, if the said construction company could not continue to conduct the construction project between the building company and the building company on November 1, 2006 and the building company on August 29, 2006, and the building company on August 29, 2006 between the building company and the building company on May 29, 2006,

그러나 다른 한편, 앞서 본 사실관계와 갑 제13호증의 1, 2의 각 기재에 변론 전체의 취지를 더하여 인정할 수 있는 사정들, 즉 ① 원고는 2006. 10. 31.과 2008. 10. 6. 동국건설 및 대주건설과 각 주택분양신탁계약을 체결하였는데, 위 신탁계약 제2조는 위 건설회사들이 분양계약을 이행할 수 없어서 분양보증을 한 원고가 분양보증을 이행할 목적(분양이행 또는 환급이행을 말한다)으로 신탁부동산을 관리 · 분양 및 처분하는 것까지 그 신탁목적으로 하고 있는 점, Ⓒ 위 신탁계약 제7조 제3, 4항에 의하면 원고가 환급이행을 한 경우 신탁원본과 수익이 있으면 상당한 방법 및 가액으로 신탁재산을 처분한 뒤, 제세공과금과 신탁사무처리를 위한 제비용에 충당할 수 있고, 그 후 잔여금액은 위탁자겸 수익자인 위 각 건설회사에 환급을 하도록 규정하고 있는 점, 원고는 2009. 4. 14.과 같은 달 17일에 위 각 건설회사에 대하여 분양보증채무의 이행에 따른 대위변제금의 상환을 청구하였으나, 위 건설회사들로부터 대위변제금을 상환받지 못한 점, ㉣ 위 주택분양신탁계약 제18조에는 신탁재산에 속하는 금전으로 원고의 신탁사무처리비용과 대지급금을 충당하기에 부족한 경우 위 건축회사에게 청구하고, 그래도 부족한 경우 원고가 상당하다고 인정하는 방법과 가액으로 신탁재산을 매각하여 그 지급에 충당할 수 있다고 규정하고 있는 점 등에 비추어 보면, 앞서 본 바와 같은 양도각서의 존재와 환급이행 이후 이 사건 제1, 2토지의 처분 등의 사정만으로는 수탁자인 원고가 환급금을 지급함으로써 위 각 주택분양신탁계약상 수탁자의 지위를 벗어나 위 각 양도각서에 기하여 이 사건 제1, 2토지에 대한 실질적인 소유권을 취득하였음을 인정하기에 부족하고, 그 밖에 이를 인정할 만한 증거가 없다. 따라서 피고의 이 부분 주장은 이유 없다.

B. As to the imposition of the registration tax and local education tax

(i)the tax base of the registration tax;

According to Articles 130(1) and (3) of the former Local Tax Act and Article 111(5)3 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 21975, Jan. 1, 2010; hereinafter the same) Article 82-2(1)2 of the former Enforcement Decree of the Local Tax Act, the actual acquisition value shall be the registration tax base for the registration of real estate, the acquisition price of which is verified by those prescribed by Presidential Decree (the director, assistant director, receipt and disbursement table, or settlement date) among corporate account books. The actual acquisition value here refers to the total expenses paid or to be paid to the other party or a third party to acquire the pertinent object of taxation as the aggregate of indirect expenses prescribed in each subparagraph of Article 82-2(1) of the Enforcement Decree of the same Act as the acquisition, transfer, modification or extinguishment of property rights or other rights. Meanwhile, where a registration is made in the public book, the registration tax shall be imposed on the person subject to the registration or registration as simple existence of the relevant fact and shall not be forfeited or invalidated.

In light of the above legal principles, as seen above, the Plaintiff entered into the instant transfer agreement with the lender on August 29, 2006, along with the agreement to guarantee the sale of housing. The content of the agreement is that if the lender is unable to continue the business due to the default on payment, etc., the Plaintiff would be subject to the transfer of all rights, etc. on the land of this case and the buildings constructed on the land of this case from the lender construction on the condition that the buyer is liable to guarantee the buyer. As such, if the buyer fails to perform the refund to the buyer, the Plaintiff could not acquire the ownership of the building of this case. After paying the refund to the buyer, the Plaintiff made a lawsuit against the buyer claiming the registration of ownership transfer of the building of this case on the building of this case based on the transfer agreement of this case against the buyer, and completed the registration of ownership transfer by the winning judgment on March 29, 2010, the Plaintiff’s tax base for the transfer of real estate was non-existent to the lender, and as long as the Plaintiff completed the registration of ownership transfer of the building of this case under its name.

In addition, as long as the amount confirmed on the corporate account books is based on the amount confirmed on the corporate account books in accordance with the relevant statutes, it cannot be viewed that the principle of clarity of taxation requirements

Therefore, this part of the plaintiff's assertion that the tax base of registration tax was wrong is without merit.

(ii) registered rates of duty;

Article 131(1)3 of the former Local Tax Act provides that the registration tax rate for the acquisition of real estate other than farmland shall be 20/1,000 for reasons other than acquisition of ownership by inheritance or free of charge. As seen above, the Plaintiff acquired ownership at a price by paying a refund to the buyer or paying the amount of the claim to the seizure authority in connection with the building not completed in this case. As such, the Plaintiff should apply the registration tax rate of 20/1,000 in accordance with the above provision.

Therefore, the plaintiff's assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim against the head of North North Korea shall be accepted in its entirety on the ground of its ground, and the plaintiff's claim against the head of the defendant mine office shall be accepted within the scope of the above recognition, and the remaining claim shall be dismissed on the ground of its ground. Since the judgment of the court of first instance is partially unfair, the plaintiff's appeal is partially accepted and the judgment of the court of first instance shall be partially accepted, and each acquisition tax and special rural development tax shall be revoked by the head of the defendant North Korea and the head of the defendant mine office, and the remaining claim against the head of the defendant

The presiding judge Park Byung-il

Judges Park Jae-soo

Judge Park Jong-soo

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.