재건축주택조합의 일반분양용 토지에 관한 신탁재산취득의 취득세 과세 여부 -대법원 2008. 2. 14. 선고 2006두9320 판결에 관한 평석-

Where an unincorporated association of housing reconstruction has acquired parcels of lands through trust, under Article 105, paragraph 10 of the Local Tax Law, acquisition of the particular land for construction of apartments structures are treated as trust property of its members. In this circumstance, there is no legal principle applicable to support the view that acquisition of land is subject to taxation. Nevertheless, there are different views on whether to impose tax to the parcels of land that were acquired by the unincorporated housing reconstruction association, in other words, lands intended for sales to third parties or the general public. The main reason for the inconsistent views on whether to levy tax in the foregoing circumstances are due to Article 105, paragraph 10 and Article 110, paragraph 1 of the Local Tax Law. More specifically, though Article 105, paragraph 10 of the Law was primarily implemented to reject case law, which imposed double taxation of apartment structures acquired by housing association, during the course of the legislative process, parcels of land for apartments were unintentionally included, which resulted in another issue of whether tax should be levied on lands acquired through trust property. Two contrary approaches are taken in regards to this issue. One view is a more strict interpretation of the relevant provision under the Local Tax Law, which can be referred to as the ‘taxation view.’ And on the contrary, the opposing view that takes into account the overall legislative intent of the Local Tax Law in its interpretation is described as the ‘non-taxation view.’ If former taxation approach is followed on lands acquired by housing associations, then the result would be incoherent tax system where taxes are enforced on trust property acquired from unincorporated housing associations but business trust are not. This inconsistent approach would require a logical explanation of the unequal taxation of trust property and the determination of whether violation of equality under the Constitution is further necessary. Among these opposing views, the Supreme Court holds the non-taxation position, which denies imposition of tax on parts of lands for sales to the general public or third parties other than members of the association acquired through trust by the unincorporated association of housing construction from its members. This position, therefore, takes the legislative intent of the Local Tax Law into consideration and the Supreme Court interpreted the taxation issue in accordance with different provisions within the Law while avoiding interpretation that may cause discrepancy among the provisions. Moreover, though the Supreme Court decision in 93Nu18839, rendered on June 24, 1994, is primarily significant for the rejection of double taxation with regards to negligent practices by housing associations and its members, the case reviewed is immensely noteworthy for rejecting taxation, through statutory interpretation, of acquisition tax that was not the intended under the Local Tax Law.