[종합토지세등부과처분취소][공1998.1.15.(50),348]
[1] Whether a non-profit entrepreneur may be exempted from the aggregate land tax if there is a justifiable reason for a non-profit entrepreneur’s failure to use land directly for his business (negative)
[2] Whether the aggregate land tax is imposed in a case where a church uses part of its land as a subsidiary pastor's company house (affirmative)
[1] The aggregate land tax cannot be exempted pursuant to Article 234-12 subparagraph 2 of the Local Tax Act, unless the non-profit entrepreneur does not use the land directly for the business and does not construct a building to be directly used for the business, even if the non-profit entrepreneur does not use the land directly for the business due to justifiable reasons, or does not construct a building to be directly used for the business.
[2] Even if a non-profit church used a part of the land owned by the non-profit church as a company house of the subsidiary pastor belonging to the church until the removal of a house on the ground, since it is a pastor appointed with the approval of the church council from time to time to time to assist the delegated pastor, who is the chairman of the church, and is in the duty of arbitrarily conducting the religious activities, it cannot be deemed that a part of the land is used as a company house of the assistant pastor, and therefore, it cannot be deemed that it is directly used for the purpose, and therefore, it does not constitute a non-taxation of the aggregate land tax under Article 234-12 subparagraph 2 of the Local Tax Act.
[1] Article 234-12 subparagraph 2 of the Local Tax Act / [2] Article 234-12 subparagraph 2 of the Local Tax Act
[1] Supreme Court Decision 92Nu14809 delivered on June 8, 1993 (Gong1993Ha, 2042), Supreme Court Decision 93Nu22801 delivered on February 8, 1994 (Gong1994Ha, 3285), Supreme Court Decision 94Nu8211, 828 delivered on April 14, 1995 (Gong1995Sang, 1903) / [2] Supreme Court Decision 85Nu824 delivered on February 25, 1986 (Gong1986, 557) (Gong1989, 1599), Supreme Court Decision 89Nu4598 delivered on September 26, 198 (Gong1599), Supreme Court Decision 2009Nu568989 delivered on November 16, 198 (Gong1989).
The Flag Korea Honorary Society (Attorney Park Jae-soo, Counsel for the defendant-appellant)
The head of Gangdong-gu Seoul Metropolitan Government (Attorney Kim Jong-he, Counsel for defendant)
Seoul High Court Decision 96Gu37680 delivered on August 21, 1997
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
In the aggregate land tax, unless a non-profit entrepreneur does not use the land directly for its business and constructs a building to be directly used for its business, even if a non-profit entrepreneur does not use the land directly for its business due to a justifiable reason or does not construct a building to be directly used for its business, it shall not be subject to non-taxation pursuant to Article 234-12 subparagraph 2 of the Local Tax Act (see, e.g., Supreme Court Decisions 92Nu14809, Jun. 8, 1993; 93Nu2801, Feb. 8, 1994; 94Nu8211, 828, Apr. 14, 1995). In the same purport, the court below was just to have determined that the plaintiff's assertion that the land of this case constitutes non-taxation of aggregate land tax as a justifiable reason for not using it directly for its business purpose, and there is no violation of law by misapprehending legal principles as to aggregate land tax.
Furthermore, the court below held that part of the land of this case is the company building of assistant pastors, and since part of the building is used directly for the purpose project by removing the building and using it as a temporary parking lot, the aggregate land tax should not be imposed. Although the plaintiff used it as the company house of assistant pastors belonging to the plaintiff church until the removal of a house on the ground of this case, the assistant pastors cannot be viewed as the one who is appointed with the approval of the church association from time to time to time to assist the entrusted pastor, and it cannot be viewed as the one who is an important part of the church's religious activities. Thus, the court below's use of part of the land of this case for the above purpose project cannot be viewed as being directly used for the purpose project, and it cannot be viewed as a non-taxation of the aggregate land tax under Article 234-12 subparagraph 2 of the Local Tax Act, and it cannot be viewed as an unlawful use of part of the land of this case as part of the land for the purpose project of the plaintiff's temporary parking lot as the land tax base of this case.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Jong-sik (Presiding Justice)