[양도소득세부과처분취소][공1993.7.1.(947),1600]
A. A person who becomes a standard for determining whether the land and buildings within the scope as determined by the Presidential Decree are “land and buildings within the scope as determined by the Presidential Decree” under subparagraph 6 (h) of Article 5 of the former Income Tax Act (wholly deleted by Act No. 4019, Dec. 26, 1988)
B. Whether an individual’s property as a non-business entity constitutes “property other than non-business property” under Article 14(6) of the Enforcement Decree of the same Act (the Presidential Decree No. 12564 of Dec. 31, 198) (affirmative)
A. Article 5 subparag. 6 (h) of the former Income Tax Act (amended by Act No. 4019, Dec. 26, 1988) provides that “income accruing from investing in kind land and buildings within the extent determined by the Presidential Decree in order to establish a foreign-capital invested company under the legislation of foreign-capital invested companies” shall be exempted from capital gains tax. The form of the above provision itself or capital gains tax is imposed on the transferor’s capital gains, and thus generally determined from the transferor’s standpoint as well as from whether the requirements for non-taxation or reduction or exemption are met. In principle, in a case where the tax exempted or exempted due to change of circumstances is collected, the provision should be set at the time of determining the requirements for additional collection. The above provision should be determined from the standpoint of investors, and it shall not be determined from the standpoint of a foreign-capital invested company.
B. Article 14(6) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12564, Dec. 31, 198) provides that "land and buildings within the scope prescribed by Presidential Decree" under Article 5 subparag. 6(h) of the same Act refers to assets other than non-business assets under each subparagraph of Article 1(2) of the Enforcement Decree of the Assets Revaluation Act. The phrase of the provision does not mean business assets, but is assets other than non-business assets. The former Income Tax Act or the Enforcement Decree thereof provides that a non-business entity is exempt from investment in kind for the establishment of a foreign-capital invested company, and does not limit the investors' investment in kind. In addition, in light of the foreign capital inducement Act, the non-business entity's assets do not belong to non-business assets under the Enforcement Decree of the Assets Revaluation Act, and as a matter of course, the non-business entity's assets constitute "property other than non-business assets" under the Enforcement Decree of the Income Revaluation Act.
Subparagraph 6 (h) of Article 5 (1) of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 198), Article 14 (6) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12564 of Dec. 31, 1988)
[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee
Head of Seongbuk District Tax Office and one other
Seoul High Court Decision 90Gu8116 delivered on July 3, 1991
All appeals are dismissed.
The costs of appeal shall be assessed against the defendants.
The defendants' grounds of appeal are examined together.
원심판결 이유에 의하면 원심은, 원고가 외자를 도입하여 그 소유의 이 사건 토지상에 관광호텔을 지어 외국인과 합작으로 운영하기 위하여 홍콩기업인 챈스 웰 컴퍼니를 외국투자가로 지정하여 1982.11.23. 재무부장관의 외국인투자인가를 받은 후 형질변경 및 건축허가를 마치고 호텔건물을 신축하다가 1986.9.4. 재무부장관의 인가를 받아 외국인투자가를 스위스 기업인 스위서어소시에이티드컴퍼니로 변경하고 1986.10.23. 이 사건 토지를 위 호텔운영을 목적으로 하여 원고와 위 스위스기업이 공동으로 출자하여 설립하는 외자도입법상의 외국인 투자회사인 유한회사렌사의 설립을 위하여 현물출자한 데 대하여, 피고는 구 소득세법시행령 제14조 제6항(1988.12.31. 대통령령 제12564호로 삭제되기 전의 것, 이하 같다) 에 의하면 외국인투자기업의 설립을 위한 현물출자의 경우 양도소득세 등의 비과세대상은 사업자인 출자자의 업무용자산에 한하는데 이 사건 토지의 출자자인 원고는 비사업자인 개인이어서 이 사건 토지가 업무용자산이 아니라는 이유로 비과세대상에서 제외하여 위 현물출자에 대하여 이 사건 부과처분을 한 사실을 인정한 다음, 구 소득세법 제5조 제6호 (아)목(1988.12.26.법률 제4019호로 삭제되기 전의 것, 이하 같다) 소정의 비과세대상인 "대통령령이 정하는 범위 안의 토지와 건물"에 해당하는지 여부는 출자자의 입장에서 판단할 것이 아니라 현물출자된 이후의 외국인투자기업의 입장에서 판단하여야 함이 마땅하다 할 것이고, 원고가 투자한 이 사건 토지는 현물출자 후 외국인투자기업의 업무용으로 사용되고 있으므로 그 출자로 인한 양도소득은 비과세소득임이 명백하다 할 것이어서 이 사건 부과처분은 취소되어야 한다고 판단하였다.
Article 5 subparagraph 6 (h) of the former Income Tax Act provides that "income accruing from investing land and buildings within the scope prescribed by the Presidential Decree in kind in order to establish a foreign-capital invested company under the legislation of foreign-capital invested companies" shall be exempted from capital gains tax. In addition, in the form of the above provision itself, it shall be determined from the standpoint of the investor, unless there are special circumstances as to whether the land and buildings within the scope prescribed by the Presidential Decree fall under the land and buildings within the scope prescribed by the Presidential Decree. In addition, in a case where the capital gains tax is imposed on the transferor's capital gains and the requirements for non-taxation or reduction are determined from the transferor's position, and in a case where the tax exempted or exempted is collected due to changes in the situation thereafter, it shall be determined from the standpoint of the investor, since the above provision does not provide for additional collection, it shall be determined from the standpoint of the foreign-capital investment company.
Meanwhile, Article 14 (6) of the former Enforcement Decree of the Income Tax Act provides that "land and buildings within the scope as determined by the Presidential Decree" under Article 5 subparagraph 6 (h) of the Act refers to assets other than non-business assets under each subparagraph of Article 1 (2) of the Enforcement Decree of the Assets Revaluation Act. The interpretation of the tax law is required to be strictly interpreted, regardless of whether it is a taxable requirement or non-business-free asset, and it is not a business-use asset (Article 45 (1) of the Regulation of Tax Reduction and Exemption Act that has a similar system to this provision provides that business assets are non-business assets). The former Income Tax Act or the Enforcement Decree thereof provides that a non-business entity shall not be allowed to make investments in kind for the establishment of a foreign-capital invested company, and it does not limit the inclusion of assets of a non-business entity, which does not belong to non-business assets under the above Enforcement Decree of the Assets Revaluation Act, and in light of the fact that an individual who is a non-business entity under the Foreign Capital Inducement Act does not limit investments in kind.
Therefore, although the land of this case invested in kind by the plaintiff as a non-business operator and an individual foreign-capital invested company to establish the above foreign-capital invested company is subject to non-taxation of capital gains tax under Article 5 subparagraph 6 (h) of the former Income Tax Act and Article 14 (6) of the former Enforcement Decree of the Income Tax Act, the defendant's disposition of this case is unlawful, and the decision of the court below that made the conclusion is legitimate, and therefore,
Therefore, all appeals are 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 on the bench.
Justices Chocheon-sung (Presiding Justice)