용도폐지 정비기반시설 무상양도의 지방세법상 취득 유형과 취득세율에 관한 고찰

The previous project implementers have reported and paid the acquisition tax on the premise that the acquisition pursuant to the latter paragraph of No. 2 of Article 97 (hereinafter referred to as the “the latter paragraph provision”) of the Urban and Residential Environment Maintenance Act (hereinafter referred to as “Urban Maintenance Act”) falls under original acquisition or gratuitous acquisition in addition to inheritance. However, the tax authorities recently laid the acquisition tax by applying the acquisition tax rate of 4% applied in case of paid succession acquisition, considering the acquisition by the latter paragraph provision to be one by exchange with newly-built maintenance infrastructure, and the project implementers are filing tax appeals and administrative litigations, asserting that it is an original or gratuitous acquisition.* Suwon High Court Judge With regard to the acquisition tax rate applied to acquisition by the latter paragraph provision, the courts of each class are adjudicating different judgments. The main reason why judgments are mixed is that the judicial nature of acquisition by the latter paragraph provision is not clear, but it is also another reason whether the type of acquisition in terms of the local tax shall be interpreted the same as its judicial concept is not determined clearly. The purpose of this paper is to review each issue above. The results of the review are as follows: There is a view that unlike its judicial concept the type of the acquisition tax based on the local tax law shall be interpreted independently in consideration of the purpose of the local tax law, but it is reasonable to interpret the type of acquisition in terms of the local tax law the same as its judicial concept when analyzing the ground on the differentiation of the acquisition rate, the acquisition tax rate based on the taxable property, etc. Thus, the acquisition tax rate applied to the acquisition by the latter paragraph provision shall be determined according to the judicial nature of the maintenance infrastructure subject to usage rescission. Regarding the judicial nature of the acquisition by the latter paragraph provision, there are a decision of paid succession acquisition, a decision of free succession acquisition, and a decision of original acquisition, however, when taking into consideration altogether that the latter paragraph provision says “it is transferred without any charge”, and that the project implementer is not considered to return the newly-built maintenance infrastructure to the national or local government for acquisition by the latter paragraph provision, it is reasonable to see it as gratuitous succession acquisition. In addition to the Urban Renewal Act, several laws have similar provisions to Article 97 of the Urban Renewal Act with regards to the return of ownership of public facilities when private project implementers abolish existing public facilities and build new ones newly. In the future, it is likely that disputes similar to those in relation to the acquisition tax in the maintenance infrastructure subject to usage rescission also arise in other public projects. This paper hopes to contribute to the settlement of the acquisition tax dispute with regards to the return of public facilities which can arise from other public projects as well as the Urban Renewal Act.