[취득세등부과처분취소][공2006.3.1.(245),341]
The meaning of "a person who operates a school under the Elementary and Secondary Education Act" who is one of those exempt from acquisition tax (registration tax).
In light of the fact that establishing or changing a kindergarten under the Elementary and Secondary Education Act and the Superintendent of the competent Office of Education must obtain authorization for establishment or authorization for modification from the superintendent of the competent office of education, and that operating a kindergarten in fact without authorization for establishment (or authorization for modification) is subject to criminal punishment as well as to the closure of the facility, “person operating a school under the Elementary and Secondary Education Act” who is one of those exempt from acquisition tax (registration tax) refers to a person who has obtained authorization for establishment (or authorization for modification) as prescribed by the Elementary and Secondary Education Act.
Article 107 subparagraph 1 of the Local Tax Act, Article 127 (1) 1 of the Local Tax Act, Article 79 (1) 2 of the Enforcement Decree of the Local Tax Act, and Article 94 (1) of the Enforcement Decree of the Local Tax Act
[Judgment of the court below]
The head of Bupyeong-gu Incheon Metropolitan City
Seoul High Court Decision 2004Nu4507 delivered on January 20, 2005
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
Article 107 subparagraph 1 of the Local Tax Act, Article 127 (1) 1 of the Enforcement Decree of the Local Tax Act, Article 79 (1) 2, and Article 94 (1) of the Enforcement Decree of the Local Tax Act shall not impose acquisition tax and registration tax on the acquisition and registration of real estate to be used for the business by a non-profit entrepreneur who operates a school under the Elementary and Secondary Education Act, which is a non-profit entrepreneur, for the purpose of public service. Subparagraph 1 of Article 2 of the former Elementary and Secondary Education Act (amended by Act No. 7120 of Jan. 29, 2004), Articles 4, 65 (2), and 67 (1) of the former Enforcement Decree of the Elementary and Secondary Education Act (amended by Presidential Decree No. 18312 of Mar. 17, 2004), and Articles 5 and 6 of the former Enforcement Decree of the Local Tax Act shall not apply to the establishment of a private kindergarten, if a corporation or an individual intends to obtain authorization for establishment or modification thereof.
In light of the principle of no taxation without the law, or the interpretation of tax laws and regulations by blocking the requirements for tax exemption or tax exemption, barring any special circumstance, they shall be interpreted in accordance with the text of the law, and they shall not be extensively interpreted or analogically interpreted without any justifiable reason. In particular, the strict interpretation of the provisions that can be clearly viewed as preferential provisions among the requirements for exemption and reduction accords with the principle of fair taxation (see Supreme Court Decision 2002Du9537, Jan. 24, 2003, etc.). As indicated in each of the above provisions, if a kindergarten is established or established or a founder is changed, authorization for establishment or change shall be obtained from the superintendent of the competent office of education, and if a kindergarten is operated in fact without authorization for establishment (or authorization for change) or authorization for change, it shall be subject to criminal punishment, and if a kindergarten is operated without authorization for establishment or authorization for change, the "person operating a school under the Elementary and Secondary Education Act", one of those eligible for no taxation without the acquisition tax (registration tax) refers to a person who obtained authorization for
In the same purport, the court below determined that the Plaintiff’s acquisition of 1/2 shares in the instant real estate used for the purpose of a kindergarten cannot be recognized as falling under “the person operating a school under the Elementary and Secondary Education Act” who is exempted from acquisition tax (registration tax) unless a legitimate authorization for modification is obtained as prescribed by the Elementary and Secondary Education Act, and there is no error of law by misapprehending the legal principles on the scope of “the person operating a school under the Elementary and Secondary Education Act” who is a non-profit entrepreneur.
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 Kim Ji-hyung (Presiding Justice)