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(영문) 서울고등법원 2012. 6. 29. 선고 2011누39839 판결

[취득세부과처분취소][미간행]

Plaintiff and appellant

Eelsan Incorporated Co., Ltd. (Law Firm Sol, Attorney Park Jeong-tae, Counsel for the plaintiff-appellant)

Defendant, Appellant

Head of branch office of Pyeongtaek-si (Law Firm Dasan, Attorney Kim Young-young, Counsel for defendant-appellant)

The first instance judgment

Suwon District Court Decision 201Guhap1338 Decided October 13, 2011

Conclusion of Pleadings

May 4, 2012

Text

1. The part of the judgment of the first instance against the plaintiff shall be revoked.

2. On November 10, 2010, the Defendant revoked the imposition of acquisition tax of KRW 192,05,990 and special rural development tax of KRW 19,205,590 on the part of expanding the building 10,038.07 square meters above ground (number 1 omitted) on the Plaintiff in Pyeongtaek-si, Pyeongtaek-do.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

1. Purport of claim

The disposition of imposition of acquisition tax of KRW 8,306,370 and special rural development tax of KRW 830,630 shall be revoked on November 10, 2010 on the part of extension of 79.05 square meters of a building 79.05 square meters on the ground (number 1 omitted) in Pyeongtaek-si, Seo-gu, Seo-gu, Seo-gu, Seoul.

2. Purport of appeal

The same shall apply to the order.

Reasons

1. Scope of the judgment of this court;

In the first instance trial on November 10, 2010, the Plaintiff sought revocation of the imposition of acquisition tax of KRW 192,05,90 and special rural development tax of KRW 19,205,590 and KRW 19,205,590 on the same Ri (number 1 omitted) on the part of extension of KRW 79,30,370 and KRW 830,630 on the land (hereinafter “second extension portion”) from the Plaintiff on November 10, 201. The first instance court dismissed the imposition disposition of acquisition tax and special rural development tax of KRW 10,038,00 on the portion of extension of the instant portion. Since the Plaintiff claimed revocation of the imposition disposition of acquisition tax and special rural development tax on the second extension of the portion of the instant portion, only the Plaintiff appealed the imposition disposition of acquisition tax and special rural development tax on the said portion. Accordingly, the first instance court appealed the imposition disposition on the said portion.

2. Details of the disposition;

(a) Acquisition of trade agreements and land, etc.;

1) On January 207, Nonparty 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 (hereinafter “joint business operators”) entered into a business agreement with the company that purchased and separately established a warehouse on the land and a warehouse in the Dongmchemical Co., Ltd. located in Pyeongtaek-si (hereinafter “Dongmchemical”) to jointly distribute profits, such as rent, etc., by leasing it to a third party.

2) Under the above business agreement, the non-party 1, 2, 3, 4, 5, 6, 7, and 8 (hereinafter "eight joint business operators") among the 11 joint business operators under the same business agreement shall purchase the shares in the aggregate of 3,341.818/6,158.6 shares in the 3,341.87/6, and the shares in the same Ri (number 3 omitted), 8,462.5 square meters in the same Ri (number 3 omitted), 8,592.0482/8,462.5 shares in the land and completed the joint registration on March 14, 207, the non-party 9, 10, and 11 who are the joint business operators of the same year shall purchase shares in the above 3,158 square meters, and completed the joint ownership of shares in the land (number 3 omitted), the remaining 3,584.16.28

3) On July 31, 2007, joint business operators 11 shared the shares of Nonparty 1,32.32/8,462.5 square meters (hereinafter “instant land”) generated through the merger of the above land and the division of the common property on July 31, 2007, Nonparty 1,32.32/8,4625 shares, Nonparty 2, 3, 4, 5, and 6, respectively, 91.74/8, 4625 shares, Nonparty 7, 826.45/8,4625 shares, Nonparty 91.2/8, 462.5 shares, 176.2/8, 462.5 shares, and 10, Nonparty 10, and 176.19/462.5 shares, respectively.

4) On May 1, 2007, joint business operators 11 completed business registration with the land of this case as the type of warehouse business, warehouse business, manufacturing business, and real estate business by making a trade name an investment on the land of this case for the purpose of distributing profits arising from the new construction and operation of an agricultural products cooling warehouse. The business operator completed business registration with the land of this case, the type of business of this case as the warehouse business, the type of business of this case as the type of real estate business, and the real estate business.

5) Meanwhile, on the ground of the instant land, there were 3,384 square meters of storage facilities of reinforced concrete tanks owned by the same chemical ownership (hereinafter “existing buildings”), but eight joint business operators acquired them on July 2, 2007.

B. Plaintiff’s establishment and expansion of warehouse

1) On August 8, 2007, six joint operators of the business and five other joint operators of the business, including the spouse, etc. of the joint operators of the other joint operators of the business, and 13 joint operators of the other joint operators of the business, etc. established the Plaintiff as capital of KRW 3 billion on August 8, 2007 for the purpose of operating the warehouse business, etc.

2) On September 10, 2007, the Plaintiff entered into a contract for the construction of the above building with the Franchise Construction Co., Ltd., and accordingly, the Plaintiff entered into a contract for the construction of the above building. The four-story factory and warehouse facilities (5,60.94 square meters in the first floor, 760 square meters in the second floor, 764.15 square meters in the second floor, 3,925.83 square meters in the third floor, 3,925.83 square meters in the third floor, 1,458.15 square meters in the fourth floor, which was completed. The Plaintiff was approved for use on September 12, 2008 (the building for which approval for use has been obtained consists of the existing building and the extended building, and hereinafter referred to as “the instant extended building”). Meanwhile, the Plaintiff spent construction expenses, such as construction expenses, which were contracted to the Franchise Construction Co., Ltd. for the completion of the instant part.

3) However, when the application for registration of the extension of this case was rejected on the ground that the name of the building permit (11 joint business operator) for the extension of this case is different from that of the ownership of the existing building (8 joint business operator), the joint business operator 11 prepared a formal contract with the content that part of the shares owned by eight joint business operators, who are the owners of the existing building, trades to three joint business operators, on the basis of this, the owner of the existing building changed the owner of the existing building to 11 joint business operators by completing the registration of transfer of ownership shares on November 17, 2008, and completed registration of change from November 19, 2008 to the title section of the existing building to the title section of the building of this case.

(c) Conclusion of a contract for use;

1) As of September 10, 2007, the Plaintiff concluded a license agreement on the instant extended building with ○○○, a Dong business entity established by 11 joint business operators, as follows.

Article 1(1)- The purpose of this Agreement is to build and operate an existing building for the extension of the existing building to ○○○○○○○○○○○○○○○○○○○○○. The purpose of this Agreement is to assign the Plaintiff’s right to use the building for twenty (20) years, and to receive usage fees from the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s right to use the building for twenty (3) years, after the completion of the extension of Article 2(1)- The Plaintiff’s right to use the building for twenty (3) years, shall be paid for the construction cost directly required for the extension of the building’s capital and the incidental tax to the Plaintiff’s right to use the building. The Plaintiff’s right to use the extended building’s ownership shall be paid for twenty (1).

(State 1)

2) As of April 2, 2009, the Plaintiff entered into an additional contract with ○○○○○ and the following details.

The Plaintiff, contained in the main text, entered into a license agreement with the Plaintiff on September 10, 2007, and received a notice of the result of tax investigation that the issuance of the tax invoice was appropriate after calculating the cost of extension of the license for 20 years. In the process, the Plaintiff and the Plaintiff perceived that the concept of transfer and acquisition of the right of use for 20 years may cause unnecessary misunderstandings of the tax authorities. On April 2, 2009, the Plaintiff agreed to add the following conditions to the Plaintiff on the main contract. While the Plaintiff and the ○○○○○ was occupying and using the ○○○○○○○○○○○○ at an appropriate time, ○○○○○○ intended to purchase ownership by paying the Plaintiff the additional amount of the rent for the extended portion of the building to the Plaintiff on the ground that the Plaintiff purchased the additional amount of the rent for use from December 25, 2008 to the ○○○○○ upon the consent of ○○○○○○○.

3) On May 25, 2009, ○○○ and the Plaintiff concluded an additional contract with the following contents.

The purpose of the license agreement on September 10, 2007, included in the main text, is to hold the Plaintiff’s ownership as to the extended portion of the Plaintiff, and ○○○○, holding the right of use for 20 years. However, the cancellation of this agreement, and the Plaintiff’s extended construction costs and interest accrued therefrom pursuant to Article 1(1) of the Additional Contract, shall be paid by the delivery long-term installment, and the purchase price shall be paid by the direct payment by ○○○○, or by the acceptance of the Plaintiff’s debt, or by the waiver of the right of use by ○○○○○○.

D. Disposition of this case

On November 9, 2010, the Defendant imposed acquisition tax on the Plaintiff pursuant to Article 105(2) of the former Local Tax Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter the same) on the ground that the Plaintiff was a de facto acquisitor of the extension portion of the instant case, and imposed acquisition tax of KRW 192,05,90 and special rural development tax of KRW 19,205,590 on the instant extension portion (hereinafter the “instant disposition”).

[Ground of Recognition] Facts without dispute; Gap evidence 1 through 9; Gap evidence 13 through 15; Gap evidence 17 through 19; Gap evidence 23 through 31; Gap evidence 37 through 40; Gap evidence 42, 43, 46, 47, 49, 50, 60; Eul evidence 1 through 7 (including each number); the purport of the whole pleadings;

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Since the instant extension portion was originally acquired by 11 joint business operators due to the following circumstances, the instant disposition, premised on the Plaintiff’s original acquisition, ought to be revoked as unlawful.

A) The instant extension was consistent with the existing building owned by joint business operators 11.

B) A license agreement entered into between the Plaintiff and ○○○○○ concluded with the Plaintiff is an agreement that the Plaintiff, a landowner, extended and used the building on the ground, and the extended part belongs to 11 joint business operators (○○○○○), a lessor of the land. The land in this case is located in a tourist zone in the Asan National Industrial Complex, an industrial facilities zone, and the lease and warehouse business that can be performed within the said complex are limited to “non-residential building lease business” and “non-residential building development and supply business.” Since ○○○○ acquired the ownership of the registration and granted the right to use the land to the Plaintiff, it is possible to operate a business within the said industrial complex because it constitutes a case where ○○○○○○○ acquired the ownership of the ownership, and thus, it was the actual intention of the parties concerned.

2) Even if the Plaintiff acquired the instant extension portion temporarily, the instant extension building is currently leased and used as a factory and freezing warehouse, which constitutes a direct use of the industrial building, etc. Accordingly, the Plaintiff is subject to exemption from acquisition tax, and thus, the instant disposition based on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Determination on the first argument

A) Whether the extension portion of this case complies with the existing building

In the case of the extension of a building, not only the physical structure attached to the existing building, but also the purpose and function of the extension shall be determined by taking into account not only the physical structure attached to the existing building, whether the extension can be the object of separate ownership in the transaction with economic utility independent of the existing building, and the intent of its owner (see Supreme Court Decision 9Da24256, May 10, 2002, etc.).

Considering the overall purport of the entries and arguments in Gap evidence Nos. 49, 50 and Gap evidence Nos. 62 through 67 (including each number), the extended building in this case is a single-story extension of the horizontal area of the existing building and the extension of the existing building from the second to the fourth floor above, which is an internal connection between the existing building and the extension of the existing building. The first floor of the extended building in this case is a freezing warehouse, office, resting room, toilet, second floor, agricultural products cooling room, freezing warehouse, freezing room, and various conference room, resting room, storage room, warehouse, etc. on the third floor are located in the agricultural products cooling room, processing room, storage room, and storage, and the fourth floor are located in the agricultural products refrigerating, and the storage located on each floor shows that the expansion of the existing building in this case has no economic value to be used for the same purpose as that of the existing building, and thus, it is difficult to view that the expansion of the existing building in this case and the expansion of the existing building in this case is an independent facility or independent facility for the same purpose.

B) Ownership of the extended portion of the instant case

A person who constructed a building with his own cost and effort shall acquire the ownership of the building in original condition regardless of whether the building permit was under another person’s name (see Supreme Court Decision 2000Da16350, Apr. 26, 2002; Supreme Court Decision 84Meu2452, Jul. 9, 1985). However, as seen earlier, the Plaintiff newly constructed and completed the extension part of this case with his own cost and effort. In addition, in full view of the following circumstances acknowledged by comprehensively taking into account the evidence and the purport of the entire arguments, it is reasonable to deem that there was an agreement between the Plaintiff and the joint businessman 11 (○○) or joint businessman of a business, or eight joint businessmen, to vest the Plaintiff in the ownership of the extended part of this case.

(1) The contents of each of the additional contracts dated September 10, 2007, drawn up between the Plaintiff and ○○○○○○, and on April 25, 2009, and on May 25, 2009, are interpreted to be on the premise that the Plaintiff is the owner of the extension portion of this case.

(2) The Plaintiff asserted that the ownership of the instant extension portion between the Plaintiff and the joint business operator 11 (○○○○○) was intended to vest in joint business operators, and that the said license agreement, etc. was merely an unilateral preparation by Nonparty 12 on behalf of both parties to the contract. However, even according to all evidence submitted by the Plaintiff at the first instance and the trial, it is insufficient to recognize the fact that there was an agreement on ownership, different from the language of the said license agreement, which is a disposal document, and there is no other evidence to acknowledge it [In addition, it is difficult to acknowledge that there is no other evidence to acknowledge that there was an agreement on ownership, which is different from the language of the said license agreement, etc., which is a disposal document,” (Article 72-2 of the evidence submitted by the Plaintiff at the trial of the party).

(3) In addition, the Plaintiff asserts that “The Plaintiff, on July 2, 2007, planned to acquire the ownership of a new building at the beginning of a political party, but, on the ground that the Plaintiff acquired the existing building in the name of eight joint business operators (excluding Nonparty 13, who opposed to the acquisition of the existing building among 11 joint business operators), not the Plaintiff, and that the said plan was revised, and the Plaintiff acquired the ownership of the extended part and decided to acquire only the right to use for 20 years.” However, according to the MO○○’s MOO acquired the ownership from the Plaintiff and the non-party 12 representing the Plaintiff and the non-party 12 and the non-party 12 who purchased the ○○○○○○○○○○○○ (hereinafter “Ch Korea”), it is difficult to obtain the right to use the land from the Plaintiff for 20 years, on the premise that the Plaintiff acquired the right to use the land from the 20-party 27th day after the extension of the existing building’s ownership.”

(4) On June 19, 2008, the Plaintiff entered into a lease agreement to rent the instant extended building with a stone Korea and received rents and deposits to appropriate them for construction cost. The above lease agreement also appears to be premised on the Plaintiff’s ownership as well as the right to use the extended part (Article 1(D) (i.e., “if a lessee sells, transfers, transfers, or disposes of the leased object, prior notice shall be given to the lessee).”

C) Sub-determination

Therefore, the plaintiff's first argument that the extended part of this case did not belong to the plaintiff is without merit.

2) Determination on the second argument

In light of the following circumstances acknowledged by comprehensively taking account of the facts acknowledged as above and the overall purport of evidence and arguments, it is reasonable to view that the extended building including the extended building in this case constitutes an industrial building subject to reduction of acquisition tax and constitutes a case where the Plaintiff directly uses it for the purpose of industrial building, etc. Accordingly, the Plaintiff’s second argument is reasonable, and the disposition in this case on different premise is unlawful and thus, should be revoked.

A) Article 276(1) of the former Local Tax Act provides, “The real estate acquired by a person (including a person who intends to lease real estate for factories to a small and medium enterprise owner) who intends to construct or extend industrial buildings, etc. within an industrial complex designated under the Industrial Sites and Development Act, an inducement area under the Industrial Cluster Development and Factory Establishment Act, and an industrial technology complex developed under the Act on Special Cases concerning Support of Technoparks shall be exempted from acquisition and registration taxes: Provided, That if such real estate is not used directly for the purpose of industrial buildings, etc. within three years from the date of acquisition without justifiable grounds, or if it is sold (excluding the case where the industrial complex management agency or an industrial technology complex management agency resells it), or used for other purposes without using it directly for industrial buildings, etc. for two or more years from the date of use (excluding the case where it is redeemed), the acquisition tax, registration tax, and property tax exempted for the corresponding portion shall be collected additionally.” The meaning of “direct use” as referred to in the proviso of the same Article is sufficient if it is directly used for its original business, or it is not provided for such purpose.

B) On September 207, 2007, prior to filing an application for permission to extend a building in the instant land, the extended building containing the instant extension is located in the Asan National Industrial Complex area, and any joint business operator of the Republic of Korea (○○○○○) submitted a business plan with the ASEAN National Industrial Complex Corporation as “friger and freezing, freezing, processing, and storing and treating the type of business (which is reasonable to deem that the foregoing type of business constitutes a warehouse, etc. defined within the scope of industrial building, etc.). On June 19, 2008, the Plaintiff leased the extended building containing the instant extension to the DFC Korea and DFD Co., Ltd. (hereinafter “DFC”) on the premise of the approval for use on June 19, 2008.

C) The purport of the former Local Tax Act that reduces acquisition tax and registration tax for industrial buildings, etc. is to encourage the construction and extension of industrial buildings, etc. in an industrial complex and to ensure the smooth flow of the nation's industry by building buildings necessary for industrial development in an industrial complex. However, it is reasonable to deem that the extended buildings in an industrial complex are used for the purpose of industrial buildings, etc. in line with the above purport, to impose acquisition tax on the Plaintiff in this case, in light of the above legislative intent, it is unreasonable

4. Conclusion

Therefore, the part concerning the claim for the cancellation of the disposition of this case is accepted for the reasons, and the part concerning the claim for the cancellation of the disposition of this case in the judgment of the court of first instance is inappropriate. The part concerning the claim for cancellation of the disposition of this case in the judgment of the court of first instance is revoked, and the defendant's disposition of this case is revoked.

[Attachment Form 5]

Judges Kim Jong-chul (Presiding Judge)

Note 1) This has the name of registration for the extended portion ○○○○. However, the form seems to have been 11 joint operators, who are not joint registration, to take the method of joint registration according to their shares ratio.