취득세에서 취득의 개념

취득세 과세에서 취득의 의미와 판례상 해석을 분석한다.

What does the term “acquisition” mean for the purpose of the acquisition tax? The Korean Supreme Court has issued dozens of rulings on top of the vast number of lower court decisions, but the issue remains chaotic as the rulings are inconsistent and incoherent. The Court defines taxability from the concept of a “transaction tax” (‘distribution tax’ in literal translation) that some transactions per se are taxable for the purpose of the acquisition tax. Obviously, taxability would then depend on the definition of taxable transaction, a product of the ‘Begriffjurisprudence’ or a metaphysical imagination by each judge.

A counter-thesis has been profferred that the acquisition tax should apply only to a substantive acquisition and not to a failed transaction or another that does not permit the acquirer to enjoy the property. Intuitively supportable from the common sense, this idea unfortunately shares the same problem as the transaction tax theory, in that even a substantive acquisition does not justifiably invite the acquisition tax. Unlike income, consumption, or property, acquisition is not an index of the ability to pay taxes. Acquisition of a property may mean that the acquirer is rich enough to buy it.

To the extent one has duly paid all the taxes one owes, i.e., has paid income taxes on the income one earned, consumption taxes for one’s spending and property taxes on one’s property, why must one pay the acquisition tax for buying a property, out of one’s savings? The substantive acquisition theory may explain the political reality of the acquisition tax but does not justify the tax. In sum, the theory is merely a reduced version of the transaction tax theory, only reducing the scope of taxable transactions. These metaphysical approaches set aside, two plausible ideas remain for defining the taxable scope.

First, simplicity would demand that every and all entry in the public register be taxable. This idea is not compatible with the reality of current law, however. Taxing every transaction would be justified to the extent the tax covers the public cost of registering or otherwise processing the acquisition in public records, but the acquisition tax far exceeds the cost. In an extreme example of acquiring a high-end housing, this idea will invite a tax of over 20% of the purchase price. The tax may amount to billions of Korean Wons, even where the acquirer in the end failed to become an owner of the property and the public registration becomes null.

The only viable idea is to admit that acquisition of a property does not incorporate an ability to pay. So long as the acquisition tax remains in force, the only way to build a more or less coherent system of law is to determine taxability or non-taxability in intuitively bright-line cases first, and extend the logical reasoning to other cases. The paper suggests two bright line cases: i) a failed attempt to purchase a property, and ii) a virtual acquirer without valid right who nevertheless illegally purchased and validly resold the property.

In the former, arguably, the acquisition tax should not apply except the registration cost portion of the tax, In the latter, the virtual acquirer must pay the acquisition tax. Fixing these two cases at the ends of the spectrum, the paper examines specific cases in the middle and reaches conclusions that are different with the court rulings so far issued.