[취득세등부과처분취소][공2012하,1454]
In the case of acquiring a building for the head office or principal office in the overconcentration control region through new construction or extension, whether it is subject to acquisition tax from among acquisition tax under Article 112 (3) of the former Local Tax Act even if it is relocated at the existing head office or principal office in the same overconcentration control region
Article 112(3) of the former Local Tax Act (wholly amended by Act No. 1021, Mar. 31, 2010; hereinafter the same) provides for acquisition of real estate for business purposes of the head office or main office in the overconcentration control region by reflecting the legislative intent prior to the amendment by Act No. 5615, Dec. 31, 1998, where the acquisition of real estate for business purposes of the head office or main office in the overconcentration control region is clearly effective, and excludes acquisition by succession, etc. which do not go against the legislative intent from the application of the former Local Tax Act. Thus, the above provision should be interpreted as the legal text, barring any special circumstance, and it should not be interpreted any more arbitrarily. Even if the transfer of the head office or main office to the existing real estate for business purposes newly constructed or extended in the overconcentration control region, it cannot be deemed as having no effect of population inflow or industry concentration in the overconcentration control region as a whole, and it is reasonable to view that it constitutes acquisition tax under Article 12(3) of the former Local Tax Act.
Article 112(1) (see Articles 11 and 12 of the current Local Tax Act) and (3) (see Article 13 of the current Local Tax Act) of the former Local Tax Act (wholly amended by Act No. 1021, Mar. 31, 2010)
Hanjin Industries Co., Ltd. (Law Firm Yang Hun-Ga, Attorneys Hong-soo et al., Counsel for the plaintiff-appellant)
The head of Yongsan-gu Seoul Metropolitan Government (Law Firm Losch Rexroth, Attorneys Han-hwan et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 2011Nu26291 decided February 8, 2012
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal are examined.
Article 112(1) of the former Local Tax Act (wholly amended by Act No. 5615 of Dec. 31, 1998 and amended by Act No. 10221 of Mar. 31, 2010; hereinafter the same shall apply) provides that “The standard tax rate of acquisition tax shall be 20/1,00 of the value of the acquired article or annual installments.” Article 112(3) of the same Act provides that “The standard tax rate of acquisition tax shall be 20/1,00 of the value of the acquired article or annual installments.” Article 6(3) of the Seoul Metropolitan Area Readjustment Planning Act provides that “The rate of acquisition tax for the acquisition of real estate for business purposes of the head office or main office (limited to new construction or extension of a building for the head office or main office and land annexed thereto) prescribed by the Presidential Decree in
The court below affirmed the judgment of the first instance and acknowledged the facts as stated in its holding, and determined that since the purpose of Article 112 (3) of the former Local Tax Act is to suppress the expansion of population and the establishment and extension of the head office or principal office causing concentration of industry in an overconcentration control region under Article 6 of the Seoul Metropolitan Area Readjustment Planning Act (hereinafter “overconcentration control region”) in order to prevent population increase and concentration in industry in an overconcentration control region under Article 6 of the Seoul Metropolitan Area Readjustment Planning Act, if the head office or principal office is already located in the overconcentration control region in the same region as above, it does not constitute an overconcentration control region among acquisition tax under Article 112 (3) of the former Local Tax Act unless it violates the legislative intent of the above Article 112 (3) of the former Local Tax Act, it did not constitute an overconcentration control region under Article 112 (3) of the former Local Tax Act. The court below determined that the total number of human resources transferred from the Gu's head office or principal office to the newly constructed new building to the above third party building and the new building from the above construction.
However, we cannot accept the above determination by the court below for the following reasons.
Unlike prior to the amendment by Act No. 5615 of Dec. 31, 1998, Article 112(3) of the former Local Tax Act, in cases of acquiring real estate for business purposes of the head office or main office in the overconcentration control region by reflecting the legislative intent of the former Local Tax Act, only the acquisition through new construction or extension of the population and industry concentration among those acquired in the overconcentration control region shall be subject to the application of the former Local Tax Act, and other acquisition by succession, etc. not contrary to the legislative intent of the former Local Tax Act shall be excluded from the application of the former Act, unless there are special circumstances, the above provision shall be interpreted as the legal text, and no further reduced interpretation shall be made; when the head office or main office is transferred from the existing real estate newly constructed or expanded in the overconcentration control region, even if the relocation from the existing real estate in the overconcentration control region cannot be deemed as having no effect of population inflow or industry concentration in the overconcentration control region as a whole, it is reasonable to view that the acquisition tax is subject to Article 1112(3) of the former Local Tax Act.
Nevertheless, the lower court determined that the Plaintiff’s acquisition of the new building of this case was subject to heavy acquisition tax pursuant to Article 112(3) of the former Local Tax Act on the ground that it was ordered to move the head office or principal office in the same overconcentration control region. In so doing, the lower court erred by misapprehending the legal doctrine on Article 112(3) of the former Local Tax Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point
Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Yong-deok (Presiding Justice)