[취득세부과처분취소][공1989.4.15.(846),547]
The case holding that "justifiable reasons" under Article 142 (1) 1 (7) of the Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 12028 of Dec. 31, 1986) constitutes "justifiable reasons"
In the case where the ready-mixed company was selected by the Minister of Trade, Industry and Energy as an enterprise located in an industrial complex, and applied for designation of the industrial base establishment project operator to the Minister of Construction and Transportation after purchasing the land to build the ready-mixed factory in that complex, but the area of the land was intended to be used for other purposes from the Minister of Construction and Transportation, not only the area where the land is located but also the manufacturing site, such as the ready-mixed factory, is refused to apply for designation because it is desirable to install it in the surrounding area of the industrial base establishment zone, and the above land cannot be used as the factory site, the above land still is a site for factory pursuant to the related Acts and subordinate statutes such as the Industrial Complex Management Act, and there is a justifiable reason that the above company is not
Article 188(3) of the Local Tax Act, Article 142(1)1(7) of the Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 12028 of Dec. 31, 1986), Article 75-2 subparag. 4 of the Enforcement Rule of the Local Tax Act (amended by Ordinance of the Ministry of Home Affairs No. 452 of Dec. 31, 1986)
Dongbu Co., Ltd., Ltd., Counsel for defendant-appellee
Jcheon Market, Attorneys Kim Dong-ju, Counsel for the plaintiff-appellant
Gwangju High Court Decision 87Gu50 delivered on February 4, 1988
The judgment below is reversed and the case is remanded to the Gwangju High Court.
The grounds of appeal No. 1 are examined.
According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiff was selected from the Minister of Trade, Industry and Energy on May 8, 1985 as an enterprise located in the Hancheon Industrial Base Cargo Complex, purchased the land of this case in order to construct the above complex, and applied for the designation of an operator of the industrial base development project on June 11, 1985 to develop it as factory site. However, on July 29 of the same year from the Minister of Construction and Transportation, the location of the land of this case was currently changed to the industrial area or future basic plan for the leisure industry base development, and it was intended to convert the land for other purposes, as well as the manufacturing site for the support of the industrial construction of the same industry as the ready-mixed Factory, on the ground that it is desirable to install it in the surrounding area of the industrial base development zone. The above land was located in the industrial complex and its use was restricted by the Industrial Complex Management Act, and thus, it constitutes the land for non-business use of the corporation at the time when one year has elapsed from the date of cancellation.
However, as determined by the court below, if the plaintiff acquired the land in this case from the Minister of Trade, Industry and Energy as an enterprise located in the industrial complex and applied for designation of the operator of the industrial base development project to construct it as the site for factory, but the Minister of Construction and Transportation rejected it for the same reason as the raw materials, and thus it becomes impossible to use it as the site for factory, the above land is still a site for factory and its use is still prohibited or restricted pursuant to the related Acts and subordinate statutes such as the Industrial Complex Management Act, and the plaintiff has no justifiable reason to use the above land directly for its original purpose
The court below held that the Minister of Construction and Transportation's rejection of the plaintiff's above application for designation as a project operator shall be deemed to have cancelled the restriction on the use of the industrial complex under the Industrial Complex Management Act, etc., and that the plaintiff's failure to use the land of this case for its proper purpose shall not be deemed to have any justifiable reason. The court below erred by misapprehending the legal principles as to "justifiable reason" under Article 142 (1) 1 and 7 of the Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 12028 of Dec. 31, 1986) and Article 75-2 subparagraph 4 of the Enforcement Rule of the same Act (amended by Ordinance No. 452 of Dec. 31, 1986) and Article
Therefore, without further proceeding to decide on the second ground of appeal by the plaintiff, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices
Justices Kim Young-ju (Presiding Justice)