不動産賣買契約의 合意解除에 따른 取得稅 課稅에 대한 考察 = An Inquiry of the Imposition of Property Acquisition Tax in connection with Mutual Consent on Cancellation of Contract for the Sale and Purchase of Real Estate

부동산 매매계약 합의해제에 따른 취득세 과세를 검토했다.

Local Tax Law of Korea provides that property acquisition tax is levied on the acquisition of real estate such as land, building, ship and airplane, etc. The time of acquisition is recognized when transferee pays the balance. Under some circumstances, parties of bargain may cancel the bargain by mutual consent. In leading cases, the Supreme Court of Korea have decided that there exists acquisition on the former transferee even if the bargain is cancelled by mutual consent of parties. Therefore, former transferee is liable to pay property acquisition tax.

Though local tax law keeps silence on this situation, local tax law seems to take same attitude toward cancellation of bargain by mutual consent as the Court takes because Local Tax Law provides that there is no acquisition on former transferee only when cancellation of bargain is realized within 30 days from the day of bargain, is achieved under the section 543~546 of The Civil Law, and is proved by protocol of compromise, deed of confirming plaintiff's claim, and notarized deed. This study brought the effect of cancellation of bargain by parties' mutual consent into focus.

In the case of cancellation of bargain by mutual consent, it should be treated, under the Local Tax Law, same as in the case of cancellation under provisional clause of section 73, 1 (2) of the Local Tax regulation delegated by the Local Tax Law as following reasons; first, there is no acquisition in essence to former transferee in the case of cancellation of bargain by mutual consent as like in the case of cancellation under the Local Tax Law, second, Acquisition Tax assumes not formal transfer but absolutely perfect transfer of real estate, it is believed, third, the theory of substance over form is ultimate principle applied in tax laws as well as in all laws, fourth, from the viewpoint of equality, there is no reasons to treat both cases differently because there is no real acquisition in both cases, Therefore, it is desirable to legalize cancellation of bargain by mutual consent into local tax system.

In doing so, rule of law would be substantially realized in the area of local tax law including national tax laws.

Ⅰ. 문제의 제기 Ⅱ. 취득세 및 취득의 성질 Ⅲ. 부동산매매계약의 합의해제 Ⅳ. 결론 〈ABSTRACT〉