[2] Whether the input tax amount of value-added tax collected by an entrepreneur who is liable to pay value-added tax is included in the acquisition price under Article 82-3 (2) of the former Enforcement Decree of the Local Tax Act (negative)

[3] In a case where the tree planted on the land of a golf course for the formation of a golf course falls under the standing timber under Article 2 of the Standing Timber Act, whether the purchase and planting costs are included in the acquisition cost of the land for a golf course subject to the imposition of acquisition tax (negative)

[2] Under Article 111(1) of the Local Tax Act and Article 82-3(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14041 of Dec. 31, 1993), the acquisition value of goods which are the tax base of acquisition tax shall be all the expenses directly and indirectly incurred in acquiring the goods in order to acquire them before the acquisition date. If the purchaser bears the value-added tax for acquiring the goods which are the object of value-added tax, it shall be deemed the expenses directly incurred in acquiring the goods. However, if the purchaser is a business operator under the Value-Added Tax Act who is the taxpayer under the Value-Added Tax Act and is subject to the transaction collection of value-added tax in acquiring the goods in relation to the pertinent business, such input tax amount shall be refunded pursuant to the relevant provisions such as Article 17(1)1 of the Value-Added Tax Act, and thus, it shall not be deemed the actual acquisition cost spent for acquiring them.

[3] Article 112 (2) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994) provides that the acquisition of golf courses shall be subject to acquisition tax. Article 84-3 (1) 1-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14483 of Dec. 31, 1994) delegated by the former Local Tax Act provides that golf courses refer to all land and buildings subject to registration under Article 4 (2) of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act as real estate for membership golf courses, which is real estate for membership golf courses, subject to the alteration of land category. Therefore, in the case of deemed acquisition of golf courses due to the alteration of land category, the cost for the construction of golf courses is the tax base of acquisition tax, for the acquisition of land for golf courses, and the heavy tax rate shall be applied to the acquisition tax rate because the new trees or trees are part of the land which is not originally unregistered, and thus, it cannot be applied to the new land category or the tax base of land.

A. According to the reasoning of the judgment of the court below, the plaintiff was established on February 17, 1989 as the corporation established on July 2, 1989 with the approval of the business plan for the sports facility business (member golf course business) and 21 lots of land (hereinafter "land of this case") were purchased and acquired (hereinafter "acquisition by succession to land"), and the construction of golf course was conducted on June 1, 1993; the plaintiff was registered as a golf course on June 30, 1993; 2,30,648,010 won; 3.0,000 won for the acquisition tax and the additional amount of acquisition tax were collected on June 30, 1993; 4.0,000 won for 1,000 won and 96.3,00 won for the remaining amount of acquisition tax and 1,000 won for 1,000 won and 1,630,000 won for the remaining amount of acquisition tax and 96.

B. In full view of the relevant provisions based on the above facts, the lower court rejected the Defendant’s principal safety defense, as it is unlawful, a lawsuit seeking revocation of the first disposition against the Plaintiff on the ground that: (a) a lawsuit seeking revocation of the first disposition on the ground that the Plaintiff may contest the illegality of the acquisition tax, which became final and conclusive in relation to the acquisition of land itself, can be asserted as to the part of the land for a golf course and its full payment, even if the Plaintiff voluntarily paid a part of the acquisition tax and voluntarily paid the tax amount applying the heavy taxation rate on the part of the land after the completion of the golf course; and (b) the remainder of the tax amount paid in full pursuant to the Defendant’s additional notice.

C. However, according to the records, the Plaintiff calculated the tax base amount based on 21,438,638,950 won in aggregate of the tax base amounts of 12,497,892,00 won in the above land account at the time of voluntary report (record 253 pages), and thereafter, calculated the tax base amount after deducting the tax base amount reported by the Plaintiff from the tax base amount, and added the additional tax to the acquisition tax amount calculated by applying the said tax rate, 51,671,140 won in the land account; 643,504,540 won in the amount of additional tax in the building account; 650,589,589,180 won in the amount of additional tax in the automobile transport account; 17,86,686,686,686,686, etc. in fact, the portion of additional tax in the land category and 208,605,686,686,606, etc.

Where a corrective disposition is taken to increase the tax base and amount of tax, the initial disposition is not a disposition to determine only the portion exceeding the tax base and amount of tax in the initial disposition as it is, but also a disposition to determine the tax base and amount of tax as a whole by including the tax base and amount of tax in the initial disposition as a result of a reinvestigation. Thus, if a corrective disposition is made to correct the amount of tax, the initial disposition is extinguished as a matter of course by absorbing the initial disposition to correct the amount of tax, and only the erroneous disposition is subject to dispute (see, e.g., Supreme Court Decisions 83Nu539, Apr. 10, 1984; 91Nu1547, Oct. 8, 1991; i.e., the portion on the land account of the first disposition (including the imposition of additional tax; hereinafter the same shall apply) on the acquisition of land, and the portion on the tax base and amount of tax on the acquisition of land, including the second disposition of acquisition tax on the acquisition of land, cannot be deemed the tax base and amount of the second disposition.

Therefore, the second disposition of July 15, 1994 is not included in acquisition tax amount on the land account (acquisition by succession of land) imposed by the first disposition. Thus, the part of the plaintiff's claim for cancellation of acquisition tax on the land account (acquisition by succession of land) of July 15, 1994 among the lawsuit of this case is unlawful since there is no taxation disposition that is the object of the trial (the plaintiff's claim of this case includes the purport of seeking cancellation of the first disposition of August 10, 1993), since the first disposition has already become infinite or infinite due to the lapse of the period of the previous trial, the first disposition is unlawful as it targets the first disposition, and the court below's second disposition is presumed to have re-determined the tax base and tax amount on the land and all buildings, including the land account, the tax base and tax amount of which became final and conclusive on the date of the second disposition, and it is unlawful to reverse the legal principles as to the imposition of acquisition tax on the part of the second disposition of this case, which does not affect the judgment's ex officio.

2. The grounds of appeal are examined.

A. As to the Defendant’s remaining grounds of appeal

According to Article 111(1) of the former Local Tax Act (amended by Act No. 4561 of Jun. 11, 1993; hereinafter the same shall apply) and Article 82-3(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14041 of Dec. 31, 1993; hereinafter the same shall apply), the acquisition value of the goods which are the tax base of acquisition tax shall be all expenses directly and indirectly incurred in acquiring the goods prior to the time of acquisition. Thus, if the purchaser bears the value-added tax for acquiring the goods which are the object of value-added tax, the transaction collected value-added tax shall also be deemed expenses directly incurred in acquiring the goods. However, if the purchaser is a businessman who is the taxpayer under the Value-Added Tax Act and is subject to the transaction collection of the value-added tax in relation to the relevant business, such input tax amount shall be refunded under the relevant provisions such as Article 17(1)1 of the Value-Added Tax Act, and thus, it shall not be deemed expenses actually incurred in acquiring the goods.

Therefore, the decision of the court below that the defendant deemed the input tax amount of the building for golf course as acquisition cost and thus, it was unlawful to impose acquisition tax by appropriating it as acquisition tax base is just, and there is no error of law by misapprehending the legal principles as to the calculation of the tax base of acquisition tax. The defendant's ground of appeal on this part was amended by Presidential Decree No. 14041, Dec. 31, 1993, which was enforced from January 1, 1994, and it cannot be accepted as the premise under Article 82-3 (2) of the amended Local Tax Act, which cannot be applied to the plaintiff's acquisition of the building for golf course of this case

B. As to the remaining grounds of appeal by the Plaintiff

Article 112(2) of the former Local Tax Act provides that golf courses shall be subject to acquisition tax as prescribed by the Presidential Decree. Article 84-3(1)1-2 of the Enforcement Decree of the same Act provides that golf courses shall mean all land and buildings subject to registration under Article 4(2) of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act as real estate for membership golf courses. Therefore, in the case of deemed acquisition due to a land category change following the construction of golf courses, expenses incurred in the construction of golf courses shall be the tax base of acquisition tax as a matter of course and the heavy tax rate shall be applied as it aims to acquire land for golf courses (see Supreme Court Decisions 89Nu5638, Jul. 13, 1990; 96Nu12634, Jun. 26, 1998). Therefore, since the cost of acquiring trees for the purpose of Article 84-3(1)1-2 of the Enforcement Decree of the same Act, which is originally unregistered and its land category shall be included in the tax base of land (see Supreme Court Decision 16Da6666.2, supra.

However, if the trees planted in the land for golf courses fall under the "standing trees" as a group of trees registered in accordance with Article 2 of the Standing Timber Act for the formation of golf courses, it shall not be regarded as separate objects subject to acquisition tax under the Local Tax Act, but shall not be treated as separate objects under private law because it does not constitute the constituent part of the land, and the value of the standing trees shall not be considered as beneficial costs for the land, so the value of the standing timber shall not be considered as the cost required for the increase in the value of the land due to the change of land category. Therefore, the application of heavy taxation rate is for the acquisition of "land for golf courses" among the acquisition tax under Article 84-3 (1) 1-2 of the Enforcement Decree of the Local Tax Act, which is subject to acquisition tax under Article 84-3

Therefore, under the premise of the legal principles that the acquisition tax may be imposed on the expenses incurred in purchasing and planting planted trees for landscaping as expenses incurred in building a golf course, the court below's rejection of the Plaintiff's assertion that the meaning of the term "standing timber as an independent object, separate from the land that has been consistently used from the land that was consistently used at the court below falls under the above standing timber, and that the purchase and planting costs of standing timber should be excluded from those subject to heavy acquisition tax, by predicting general cases, is ultimately failing to exhaust all necessary deliberations, or committed an error of law by misunderstanding the legal principles as to the scope of a golf course subject to acquisition tax and a golf course. The part pointing this out in the Plaintiff's grounds of appeal on

3. Therefore, the part of the judgment of the court below against the plaintiff among the part on the land account (acquisition by succession of land) and the part on the standing timber account shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination, and the remaining grounds of appeal by the defendant are dismissed as they are without merit, and it is so decided as per Disposition

Justices Jeong Jong-ho (Presiding Justice)