[2] The meaning of "real estate for housing construction" that is excluded from the heavy registration tax

[2] In light of the purport of Article 101 (1) 5 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14447 of Dec. 23, 1994), which provides an exception to heavy registration tax, real estate for housing construction as stipulated in the above provision shall include welfare facilities stipulated in the housing construction-related laws and regulations as essential facilities in the housing complex, other than housing construction-related laws and regulations, however, other welfare facilities, etc. shall not be included in the above provision, even if they are installed with the business approval of the relevant authorities.

On the first ground for appeal

Article 138 (1) 3 of the former Local Tax Act (amended by Act No. 4611 of Dec. 27, 1993; hereinafter the same) provides that the registration tax rate for the registration of the real estate in a large city after the establishment of a juristic person shall be five times the relevant tax rate provided for in Article 131 of the same Act. Since there is no restriction on the scope of the subject real estate registration, the scope of the subject real estate registration is limited only to the registration of the acquisition of the real estate as fixed assets related to the establishment and use of a business place, and it cannot be interpreted that the registration of the acquisition of the real estate as an asset generated from business activities is excluded. Accordingly, according to the delegation of Article 102 (2) of the Enforcement Decree of the Local Tax Act Article 138 (3) of the Local Tax Act, the scope of the registration of the real estate after the establishment of a juristic person under the above Act shall be limited to all the real estate for non-business, non-business or non-business purposes acquired by the juristic person within five years after the establishment.

In addition, a corporation generally has a strong expansion in its organization and size, and the concentration effect of population and economic power may occur far more strongly than that of natural persons, and at the same time, by enjoying high level of cluster interests held by large cities, it may gain more convenience and economic benefits than those of corporations outside large cities. As such, a corporation’s real estate registration in a large city may not deviate from the principle of free economic guaranteed by the Constitution, nor infringe on the freedom of residence and business, freedom of business, and equality of rights by imposing registration tax at a relatively higher rate compared to the real estate registration conducted by a natural person or a corporation outside a large city (see Constitutional Court Order 94Hun-Ba42, Mar. 28, 1996).

With respect to the second and third points

Article 138 (1) of the Local Tax Act provides that the registration tax imposed on corporate registration, etc. in a large city area shall be imposed on the registration falling under any of the following subparagraphs, but it shall not apply to the category of business prescribed by the Presidential Decree. Accordingly, Article 101 (1) 5 of the former Enforcement Decree of the Local Tax Act (amended by the Presidential Decree No. 14447 of Dec. 23, 1994) provides that "housing construction business (limited to the real estate acquired and registered for housing construction, and the real estate shall be commenced within 3 years after its acquisition) registered in the Ministry of Construction and Transportation pursuant to Article 6 of the Housing Construction Promotion Act." The purpose of the above provision is to provide that a registered housing construction business operator shall meet a specific qualification requirement and obtain registration in the Ministry of Construction and Transportation, and shall meet the strict standards for housing construction, supply conditions, methods and procedures of housing, etc., and shall not be included in the housing construction-related facilities to promote housing stability and improvement of housing construction for citizens in a large city.

According to the reasoning of the judgment below and the records, the plaintiff corporation was established in Busan on March 3, 1989, registered pursuant to Article 6 of the Housing Construction Promotion Act, and purchased the land of this case 8,457.5m2 in Busan on March 19, 1992 to newly build and sell apartment houses, and completed the registration of ownership transfer, and started the construction of apartment houses on December 28, 1993, and completed the registration of ownership transfer on December 28, 28, 280 households, 31,146.69m2m2 in total of purchasing facilities, living facilities, education facilities, medical facilities, and living facilities, and completed the registration of ownership preservation on the disposal of apartment houses and housing construction standards. Accordingly, the defendant's disposal of apartment houses constitutes a legitimate disposal of ownership preservation, excluding the registration tax of this case and the registration tax of this case and the remaining facilities under Article 50 (1) and Article 51 (1) and Article 51 (1) of the Housing Construction Promotion Act.

Although the reasoning of the judgment of the court below is inappropriate, the conclusion of rejecting the plaintiff's assertion that the whole welfare facility of this case should be excluded from the target of heavy taxation is just, and there is no error of law such as the theory of lawsuit.

In addition, according to the special provisions of Article 7 (3) of the Regulations on Standards for Housing Construction, the Plaintiff asserts that in this case the application of the provisions of Articles 50 (1) and 51 (1) of the above Article 50 should be excluded, all of the purchasing facilities, living facilities, educational research facilities, medical facilities, and neighborhood living facilities other than housing should be considered as real estate for housing construction. However, if the application of the provisions of Articles 50 (1) and 51 (1) of the above Article is excluded as alleged by the Plaintiff, the above assertion can not be included in the above purchasing facilities or residential facilities, and therefore, the above assertion cannot be accepted. There is no reason to

On the fourth ground

The plaintiff's assertion is that the land of this case is subject to heavy taxation, not subject to heavy taxation at the time of the registration of acquisition, but subject to heavy taxation at the time of the commencement of housing construction within the grace period, and even according to the provisions of the Local Tax Act, if the heavy taxation requirements are met after the registration of acquisition of real estate, it cannot be deemed that the taxpayer was liable for the imposition of additional tax in this case is illegal. However, according to the records, the additional tax in this case is not subject to heavy taxation and registration tax for the registration of acquisition of land among real estate subject to heavy taxation, but it is known that it is added only to heavy taxation and registration tax for the registration of acquisition of the building, and the above argument of the plaintiff is derived from the erroneous understanding of the contents of the defendant's taxation (And, the registration of acquisition of the building of this case is subject to the heavy taxation at the time of registration, unlike the registration of acquisition of land, and the taxpayer is obligated to pay the registration tax subject to heavy taxation at the time of registration. Therefore, the disposition of additional tax in

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Im-soo (Presiding Justice)