대도시 안에서 서울특별시로의 전입이 취득세 중과세 대상인지 여부

서울시 전입 법인의 부동산 취득세 중과 대상 여부를 검토했다.

Article 13 (1) and (2) of the Local Tax Act (“LTA”) imposes a heavy rate of acquisition tax on the acquisition of real estate by corporations in an over-concentration control region under certain statutory conditions pursuant to the Seoul Metropolitan Area Readjustment Planning Act.

In relation to the heavy taxation of acquisition tax within the over-concentration control region, Article 27(3) of the Enforcement Decree of the LTA (“ED-LTA”) stipulates that “transfer (in cases of the Seoul Metropolitan Area, a transfer from an area, other than the Seoul Metropolitan City, into the Seoul Metropolitan City shall be deemed a transfer into a large city; hereafter the same shall apply in this Article)”(provision contained in parentheses hereinafter referred to as ‘the regulation in this case’) and includes within the scope of heavy taxation not only the case where the transfer takes place from outside a large city into a large city but also the situation where the transfer takes place from within a large city into the Seoul Metropolitan City.

In this manner, there are issues regarding whether the regulation in this case, which stipulates the scope of transfer to a large city subject to heavy taxation, has valid grounds for delegation of authority from the LTA as its primary legislation and whether it conforms with the legislative purpose for heavy acquisition tax imposition within over-concentration control regions.

First, in relation to the legislative grounds under the primary legislation, the proviso under Article 13(2) of the LTA stipulates the meaning of “large city” as “an over-concentration control region under Article 6 of the Seoul Metropolitan Area Readjustment Planning Act (excluding an industrial complex subject to the Industrial Cluster Development and Factory Establishment Act; hereafter referred to as large city in this Article).

Subparagraph 1 merely refers to “real estate in a large city is acquired as the head office, main office, branch or sub-office of a corporation is relocated to a large city” without any mention of delegating authority regarding the scope of “transfer to a large city” to presidential decree. Further, Article 13(8) of the LTA delegates authority regarding the scope of heavy taxation and applicable standards under paragraph 2 to presidential decree, without providing grounds for delegation to expand the scope of heavy taxation by way of presidential decree. In that respect, Article 13(2) and (8) cannot serve as appropriate grounds for delegation of the regulation in this case.

On the other hand, in looking at the legislative purpose for heavy taxation of acquisition taxes on real estate purchased in large cities under the LTA, this measure is aimed at preventing the concentration of the economy and population in large cities and to revitalize the local economy. However, from December 31, 1979 when the regulation in this case was first implemented and for over 35 years to date, regions that are considered large cities pursuant to the LTA have come to experience no significant differences in comparison with the Seoul Metropolitan City in terms of population and economic concentration.

In principle, the position of the courts is that transfers within large cities do not fall within the scope of heavy taxation. In this regard, it is difficult to adopt the view for a policy need to impose heavy taxation on the transfer from a large city outside of the Seoul Metropolitan City to Seoul Metropolitan City. Further, the regulation in this case does not corresponde with the legislative intent for heavy taxation. As such, the regulation in this case does not have appropriate delegating authority from the LTA, the principal legislation.

Even if Article 13(8) of the LTA is deemed as grounds for delegation, the regulation in this case is invalid for overstepping the scope of delegation to expand the scope of heavy taxation and also fails to correspond with the legislative purpose for heavy taxation on the purchase of real estate. From a legislative theory perspective, the regulation in this case needs to be deleted as soon as possible. If, from a policy perspective, the regulation in this case continues to remain effective, appropriate delegating authority must be granted under the LTA.