취득세의 법적 성질론에 관한 소고-부동산에 대한 취득세를 중심으로-

부동산 취득세의 법적 성질을 둘러싼 견해와 판례를 검토한다.

Regarding the nature of Acquisition Tax, the two theories are in confrontation with each other. One position is that Acquisition Tax is a kind of transfer tax, and the other position is that it is a kind of property tax. The former is called formal theory and the latter is called substantive theory in relation to the tax liability of Acquisition Tax. The Supreme Court has always supported the transfer tax or formal theory. Nevertheless, the Supreme Court drew conclusions that conformed to the substance theory, contrary to the formal theory on many specific issues.

First, if a legal act of giving or trading is canceled due to its legal impediment, the formal theory acknowledges the establishment of a tax liability to pay Acquisition Tax, but the Supreme Court denied it. Second, in the case of a legal cancellation, termination of contract or cancellation of an agreement regarding a gift or sale contract, the formal theory acknowledges the establishment of a tax liability to pay Acquisition Tax to the original donor or seller who recovers to the original state, but the Supreme Court denied it.

Third, as to whether the application of the system of claim of reassessment under the Framework Act on Local Taxes, which went into effect on January 1, 2011, is applicable to acquisition taxes, the Supreme Court has ruled inconsistent judgments. The Supreme Court made a ruling that conformed to substantive theory sometime and then later to formal theory.

Fourth, the Supreme Court has ruled the acknowledgement of the claim of reassessment for Securities Transaction Tax, which is treated as the same transfer tax with Acquistion Tax, on issues such as post reduction of sale price, in line with the position of the substantive theory, but in the case of the acquisition tax, it denied the claim of reassessment in accordance with the position of the formal theory.

The theoretical disorder caused by the Supreme Court’s ruling is generally attributed to the fact that the nature of Acquisition Tax is regarded as transfer tax, but the compromise was made in consideration of the benefits of use, profit, and disposal that can be acquired from goods in solving specific cases. It is unlikely that the Supreme Court will change its stance in support of the transfer tax or formal theory regarding the nature of Acquisition Tax, which has been maintained from a long time ago, to the extent of changing the precedent, or the new legislation of exemption from taxation and a new tax-free rule.

While maintaining legal coherence with respect to the theory of the nature of Acquisition Tax, the changes to positions that conform to the principle of tax equality or to the legal rights of taxpayers will have to be made by active legislation based on substantive theory.