개발사업 관련 국가 등 귀속 토지와 취득세 비과세 여부: 지방세법 제9조 제2항의 해석론을 중심으로

In the process of promoting land development projects, new public infrastructure lands are transferred to the Government, free of charge. However, in accordance with the law, the Government receives free transfers of land for former public infrastructure purposes within the project area whose use is abolished. The issue is whether the free transfer of land and the free transfer to the Government, etc. constitute a counter-consideration. This is because, depending on whether there is a counter-consideration, the acquisition tax is exempted or reduced by 50%, but the interpretation of this is unclear in the current Local Tax Act and the Local Tax Special Exceptions and Restrictions Act. In addition, in the taxation of acquisition tax, the method of calculating the taxable standard and the tax rate differ depending on whether there is a counter-consideration (i.e., whether it is a free or paid acquisition). In the past, acquisition tax was not levied on real estate that was gratuitously transferred to the Government or donated, but with the revision of Article 9, Paragraph 2 of the Local Tax Act in 2015 and the establishment of Article 73-2 of the Local Tax Special Exceptions and Restrictions Act, there is controversy over the interpretation of this.
In conclusion, it is reasonable to consider that there is no counter-performance in the case of real estate acquired under the condition of gratuitous transfer. However, if counter-performance is established, real estate acquired from a third party that gratuitously transfers to the Government, etc. does not have counter-performance, but real estate that is gratuitously transferred to the Government is a land that was gratuitously transferred from the Government and then re-transferred to the Government by installing public infrastructure on the land. Therefore, it is reasonable to consider that there is counter-performance in the gratuitously transferred real estate and the gratuitously transferred real estate.