[지방세(취득세·등록세)부과처분취소][공2012상,598]
In a case where Gap, who had been engaged in business in his own land as a private entrepreneur, established Eul corporation and had Eul corporation conduct the above business, acquired other real estate by substitution, and reported and paid acquisition tax, the case holding that Gap and Eul corporation are separate legal entities, and thus Gap's real estate acquisition does not constitute "non-taxation of acquisition tax, etc. on alternative acquisition due to land expropriation, etc.," but the judgment below erred in the misapprehension of legal principles otherwise.
In a case where Gap, who was engaged in the collection and processing business of abolition, etc. in his own land, established Eul corporation and caused Eul corporation to run the above business, and acquired other real estate instead of other real estate and reported and paid acquisition tax, the case holding that Gap and Eul corporation cannot be viewed as Gap's business since it is an independent legal entity separate from Eul corporation, and Eul corporation's business was closed on July 15, 2008 after completion of corporate registration and business registration and then there was a public announcement of business approval on August 14, 2009, and Gap's real estate acquisition was not actually engaged in the business one year prior to the public announcement of business approval, and thus, Gap's real estate acquisition does not constitute a violation of law by misapprehending legal principles as to land expropriation under the former Local Tax Act (wholly amended by Act No. 1021, Mar. 31, 2010) and the former Enforcement Decree of the Local Tax Act (wholly amended by Presidential Decree No. 2395, Sep. 239, 2010).
Article 109 of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010; see current Article 73 of the Restriction of Special Local Taxation Act); Article 127-2 (de Facto Deletion); Article 79-3 (2) of the former Enforcement Decree of the Local Tax Act (wholly amended by Presidential Decree No. 22395, Sep. 20, 2010; see current Article 34 of the Enforcement Decree of the Restriction of Special Local Taxation Act)
Plaintiff (Attorney Song Dong-ho, Counsel for the plaintiff-appellant)
Head of Seodaemun-gu Daejeon Metropolitan City (Attorney Kim-type, Counsel for the plaintiff-appellant)
Daejeon High Court Decision 2010Nu2522 decided May 26, 2011
The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.
The grounds of appeal are examined.
1. Relevant statutes
According to Articles 109 and 127-2 of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010; hereinafter the same shall apply) applicable to this case and Article 79-3 (2) of the former Enforcement Decree of the Local Tax Act (wholly amended by Presidential Decree No. 22395, Sep. 20, 2010; hereinafter the same shall apply), where a person who has obtained a project approval under the provisions of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects enters into a contract for real estate to be acquired as substitute after the date of contract or public announcement of the project approval, or acquires substitute real estate within one year from the date of the final approval of the acquisition thereof (Article 109 (1) of the former Local Tax Act). In such cases, no registration tax shall be imposed on the resident or person who has been registered as a business operator or a real estate under the provisions of the former Local Tax Act (wholly amended by Act No. 1027, Jan. 2, 201, 201).
2. The judgment of the court below
A. The facts duly established by the court below are as follows.
From August 1, 1987 to December 31, 2008, the Plaintiff had 00,000,000,000 won, 20,000 won, 10,000,000 won, 20,000 won, and 13,000,000,000 won, and 10,000,000 won, 20,000,000 won, and 10,000,000,000 won, 20,000,000 won, and 10,000,000,00 won, 20,000 won, and 20,000,00 won, 20,000 won, and 10,00,000 won, and 20,00,00 won, 20,00,00 won, and 20,000,00.
B. Based on this, the lower court determined that the Plaintiff did not constitute an absentee real estate owner under Articles 79-3(2)2 and 127-2(2) of the former Enforcement Decree of the Local Tax Act, and thus, did not impose acquisition tax, etc. as to the acquisition of the instant real estate, since the Plaintiff did not constitute an absentee real estate owner under Articles 109(1) and 127-2(2) of the former Enforcement Decree of the Local Tax Act, even if the Plaintiff changed his business registration from
3. Judgment of the Supreme Court
The judgment of the court below is not acceptable for the following reasons.
In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws shall be interpreted in accordance with the text of the law, barring any special circumstance, and it shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fair taxation to strictly interpret that the provision is clearly preferential among the requirements for tax exemption or exemption (see Supreme Court Decision 97Nu20090, Mar. 27, 1998, etc.).
On the other hand, a corporation has an independent legal personality and becomes the subject of rights and duties, so it cannot be said to be the same as an individual who is the representative.
Upon examining the facts established by the court below in accordance with the above legal principles, since the plaintiff and the company of this case are separate separate legal entities, it cannot be deemed that the company of this case was engaged in the business of collecting and processing business registration, abolition, etc. in the land of this case, and the plaintiff is not subject to non-taxation for substitute acquisition due to land expropriation, etc. under the former Local Tax Act and the Enforcement Decree thereof, since the company of this case discontinued its business on December 31, 2008 after completing corporate registration and its business registration on July 15, 2008, and since there was a public announcement of the creation of green park of this case on August 14, 2009, the plaintiff did not actually engage in business one year prior to the public announcement of the above public announcement. Accordingly, the plaintiff's acquisition of real estate of this case does not constitute "land subject to non-taxation for substitute acquisition due to land expropriation, etc."
Nevertheless, the lower court determined otherwise, that the Plaintiff’s acquisition of the instant real estate constitutes non-taxation subject to acquisition tax, etc. on alternative acquisition due to the said land expropriation, etc. In so doing, the lower court erred by misapprehending the legal doctrine on non-taxation subject, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of
4. Conclusion
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 Lee In-bok (Presiding Justice)