[사업소세부과처분취소][집38(1)특,421;공1990.4.15.(870),816]
(a) The case holding that the decision of the court below was erroneous in the incomplete hearing on the ground that the municipal ordinance stipulating the Myeon where 7 employees are located in a stone plant is null and void;
(b) Whether a hospital established and operated in an area subject to taxation of business place tax by a corporation for the purpose of social welfare business is subject to non-taxation of business
A. In a case where there is no construction complex designated by the government in the face of the area subject to taxation of business place tax in the Municipal Ordinance, and there is only seven employees, even if there is only seven employees, it is difficult to conclude that the above factory is a factory in a permanent and inland industrial scale, and in light of the above factory's size, operational form, and other impacts on the surrounding environment, there is no evidence to find that the above factory is not a factory, the requirement of the taxable area of business place tax, the court below held that the above municipal ordinance provisions as invalid merely based on the fact that the above municipal ordinance is an employee seven tin factories, the court below erred by failing to exhaust all necessary deliberations, which affected the conclusion
B. On or before December 31, 198, where subparagraph 1 of Article 209-2 of the former Enforcement Decree of the Local Tax Act was deleted, if a person who is not a medical corporation operates a hospital or other medical business, such business shall not be considered to be subject to exemption from the business place tax, but subject to reduction. Meanwhile, since the business place tax is imposed on each business place in the Si/Gun having jurisdiction over the location of the business place, the Si/Gun having jurisdiction over the location of the business place tax, it should be determined whether the business place tax is subject to exemption for each business place. Thus, even if a corporation is established for the purpose of establishing social welfare business such as expansion of medical benefits and support for research activities of human resources, the general hospital established and operated by the plaintiff in the area subject to taxation of the business place tax by the plaintiff shall not be considered to be a non-profit business operator
(a) Article 244 of the Local Tax Act; Article 205 of the Enforcement Decree of the same Act; Article 207, Article 79 subparag. 4, Article 79 subparag. 21, Article 209-2 subparag. 1, Article 209-2, Article 109-2 of the Enforcement Decree of the Local Tax Act;
Attorney Park Young-soo, Counsel for the defendant-appellant of the Asan Social Welfare Foundation
Bosung-gun, Attorney Kim Dong-ju, Counsel for defendant-appellant
Gwangju High Court Decision 88Gu932 delivered on May 16, 1989
The judgment below is reversed and the case is remanded to the Gwangju High Court.
1. We examine the grounds of appeal by the defendant's attorney.
Article 244 of the Local Tax Act provides that only a person who has a place of business in an area prescribed by the Presidential Decree shall be liable for tax payment. Article 205 (1) 3 and (2) of the Enforcement Decree of the same Act provides that one of the "area prescribed by the Presidential Decree" stipulated by the same Act shall be listed as one of the "area prescribed by the Presidential Decree" in the same Act and shall be delegated to the Ordinance of the Ministry of Home Affairs to determine the scope and standard of the area prescribed by the Ordinance. Accordingly, Article 109-2 of the Enforcement Decree of the same Act provides that an Eup/Myeon where an industrial complex designated by the Government is located; 2. According to the records, Article 20 (2) (a) of the Bosung-gun Ordinance on the Purpose Tax of Bosung-gun shall be the area subject to taxation of business place tax by classifying Bosung-gun, Seosung-gun, a factory as the area subject to taxation of business place tax, and barring special circumstances, the plaintiff who opens and operates a Bosung-gun-gun, 1168 area.
However, according to the reasoning of the judgment below, the court below held that Article 20 (2) of the Ordinance of Bosung-gun, which is the basis for taxation of this case, does not comply with the provisions of Article 205 of the Enforcement Decree of the Local Tax Act and Article 109-2 of the Enforcement Decree of the same Act, and does not comply with the provisions of Article 109-2 of the same Act, and does not follow the provisions of Article 205 of the Enforcement Decree of the Local Tax Act and the provision of Article 109-2 of the same Act and the disposition of imposing the business place tax of this case, which is based on the above provisions, is unlawful, in the case where there is no industrial complex designated by the government in the Bosung-gun-gun-gun-gun-gun-gun-si, and there is no other factory.
However, it is difficult to conclude that the above tin factories are 7 employees, but it is hard to say that they are above factories and factories of inland and industrial scale, even after examining records, there is no evidence to find that they do not constitute a factory, which is the requirement of the area subject to taxation of business place tax, in light of the size of the above factories, the type of operation and other impacts on the surrounding environment.
If the court below considers the above municipal ordinance provisions null and void, it should have deliberated on the above issues, but it is reasonable to discuss the above facts with the fact that it is a stone plant with 7 employees only without a name, and the decision was made as above, and it is reasonable to discuss this issue as to the violation of law which affected the conclusion of the judgment through insufficient deliberation.
2. We examine the second ground for appeal.
According to the reasoning of the judgment below, according to Article 245-2 (1) of the Local Tax Act, business place tax shall not be imposed on non-profit business operators prescribed by the Presidential Decree for the purpose of memorial services, religion, academic, academic, art, and public services. According to Article 207 of the Enforcement Decree of the Local Tax Act, "non-profit business operators prescribed by the Presidential Decree" under Article 245-2 (1) of the Enforcement Decree of the Local Tax Act refers to business operators under Article 79 (1) 1 through 7 of the Enforcement Decree of the Local Tax Act. Meanwhile, Article 79 (1) 4 of the Enforcement Decree of the Local Tax Act provides for organizations with the purpose of social welfare services, such as the care center, childcare center, mother resources, and patients care center as part of non-profit business operators. As seen above, the court below determined that the plaintiff is not related to the plaintiff's business place tax as long as it is established for the purpose of establishing social welfare services, such as expansion of medical benefits for the plaintiff, and support for research activities of national human resources.
However, Article 79 (1) 4 of the Enforcement Decree of the Local Tax Act as a non-profit entrepreneur subject to the non-taxation of business place tax provides that the organization for the purpose of social welfare business, such as old-age houses, infant care centers, mother resources, or home care treatment and protection facilities for patients, and that listed each medical corporation established under the Medical Service Act. Article 245-2 (2) of the same Act and subparagraph 1 of Article 209-2 of the Enforcement Decree of the same Act (amended by December 31, 198) of the same Act provide that the corporation subject to the reduction of business place tax or the business of a medical corporation subject to the reduction of business place tax, and medical business such as hospital, clinic, clinic, oriental medical clinic, maternity clinic, etc. before December 31, 198. In light of the above provisions, if a non-profit medical corporation operates medical business such as hospital, it cannot be deemed that the business falls
On the other hand, since the business place tax shall be imposed by business office in the Si/Gun having jurisdiction over the place of business (see Article 246 of the Business Office Tax Act), it is necessary to determine whether the business place tax is subject to taxation by business office (see Article 246 of the Business Office Tax Act). Even if the plaintiff is a corporation established for the purpose of establishing social welfare business such as expansion of medical benefits, support for research activities of national human resources, etc., the above business place tax shall not be deemed to be a non-profit entrepreneur under Article 79 (4) of the Enforcement Decree of the former Enforcement Decree of the Local Tax Act as a business place operating medical business.
In conclusion, the judgment of the court below is justified because it is erroneous in the interpretation of the above Local Tax Act on the object of non-taxation of business place tax, which affected the conclusion of the judgment, and therefore it cannot be maintained.
3. Therefore, we reverse and remand the judgment of the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)