지방세법상 취득시기와 납세의무자: ‘사실상 취득’ 개념을 중심으로

The Local Tax Law defines the term “acquisition” very broadly, and deems an acquisition to have occurred by adopting the ”de facto acquisition” concept in cases where, in substance, the ownership has been transferred but not legally complete due to the lack of necessary paperwork (i.e., registration) under the relevant law. While it is critical to determine the acquisition date for purposes of assessing acquisition tax, the definition of “acquisition” and “de facto acquisition” is not clear under the law and thus exists multiple research papers and case precedents on this issue. This paper focuses on the “de facto acquisition” concept, and provides a deep analysis on the relevant law and case precedents on how and when the acquisition timing and taxpayer is determined. The concept of “de facto acquisition”, which adjusts the timing of acquisition, is theoretically valid since it moves forward the acquisition period to accurately reflect the current ownership prior to completion of the “perfunctory” registration process. For example, the Presidential Decree of the Local Tax Law allows the “contractual closing date” to be used as the acquisition date, which provides more clarity in case the actual payment date is not clear. It is worthy to note that the “de facto acquisition” concept treats the contractual buyer, who paid the purchase price and satisfied the factual requirements to obtain ownership, as the tax obligor, and not a new 3rd party who is nether the owner or buyer of the property. In case the contract turns out to be void or is canceled, acquisition tax would not be imposed on the new owner/buyer. Further, to the extent the new owner/buyer has been assessed (and paid) acquisition tax on a certain property based on the “de facto acquisition” concept, such owner/buyer will not be subject to double taxation for the same property as it completes the remaining registration process required under the Local Tax Law. The recent Local Income Tax amendment also implemented the “de facto acquisition” concept to trust assets, where the new grantor is assumed to have acquired the trust assets. This is mainly to prevent circumvention of acquisition tax liability by transferring the grantor’s title. However, under the Trust Act, a transfer of grantor’s title does not necessarily mean the ownership of the trust assets have been transferred or acquired by the new grantor, and thus the newly enacted provision does not completely match the concept of “de facto acquisition”. Instead, it seems the legislative intent can be similarly achieved if the new provision stipulates only those cases where trust assets transferred to the “first” grantor after liquidation of the trust is non-taxable.