[2] In a case where a land designated and publicly announced as an urban redevelopment district is acquired, whether it constitutes “real estate, the use of which is prohibited or restricted by law after its acquisition” under Article 18(4)1 of the Enforcement Rule of the Corporate Tax Act (negative

[3] Whether the act of constructing a new building to acquire a corporate house constitutes a corporation’s inherent business (negative), and whether the newly established business year to which Article 18(6) of the Enforcement Rule of the Corporate Tax Act (amended by Act No. 18(6) applies shall be deemed to have been used directly for the business when the new building is used for

[4] In a case where a corporation uses part of the land newly built as a site office and a building for a lodging house, the scope of land directly used for a building, which is excluded from real estate for non-business use

[5] In a case where a corporation whose purpose business is civil engineering, construction, etc. uses land acquired as a site for construction materials, etc., whether it is directly used for its unique duties (affirmative)

[6] Whether a legitimate ground constitutes an exception to the Corporate Tax Act on whether a legitimate ground constitutes a non-business real estate under the Corporate Tax Act (negative)

[2] The provisions of the Urban Planning Act on real estate in the redevelopment area fall under the prohibition or restriction of the use under Article 18 (4) 1 of the Enforcement Rule of the Corporate Tax Act, and such restriction of activities becomes effective immediately by the designation and public notice of the redevelopment area, and if the corporation has already been designated and publicly notified as the urban redevelopment area before acquiring the land, the land shall not be deemed to fall under the "real estate, the use of which is prohibited or restricted under the provisions of the Act after acquisition" under Article 18 (4)

[3] Although a new construction of a building for acquisition of a private house can be deemed as falling under the preparation for its own purpose project, it can not be deemed as falling under its unique duties. However, the Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1818 of Apr. 4, 1990) stipulates that the land shall be directly used for the business when the construction was commenced for the purpose of use by acquiring the land, and that the land shall be deemed as directly used for the business. In this case, if the construction is suspended without any justifiable reason, it shall be deemed as real estate for non-business use for the period of suspension (Article 1 of the Addenda). This Rule shall enter into force from the date of its promulgation, and it shall be applied from the business year ending for the first time after the enforcement of the Rule (Article 2 of the Addenda). If a corporation acquires the land and continues the construction before the completion of the construction, the above land shall be deemed to have been directly used for the business for each business year to which Article 18(6)

[4] If a corporation uses part of the land newly built as a site office and a building for a lodging house, the standard area under Article 18 (3) 2 of the Enforcement Rule of the Corporate Tax Act is excluded from land for non-business use, which is the land directly used for a building.

[5] The Supreme Court's established precedent that regards the use of the land acquired by a corporation whose business is the purpose of civil engineering and construction as the site for construction materials, etc. as the site for its unique business is that it is directly used for its unique business. Article 18 (3) of the Enforcement Rule of the Corporate Tax Act amended on April 4, 190 provides that "the land for the open site, storage yard or storage yard exceeds 1.2 times the maximum area required for the storage and management of products, etc. during the pertinent business year and the immediately preceding two business years" as one of the non-business real estate. Thus, if a corporation uses the land for the purpose of its business as the site yard, etc. among the land newly constructed a private house, the remaining part of the land except the land for the building such as the site office and the joint board yard

[6] Article 18(3) of the Enforcement Rule of the Corporate Tax Act lists real estate for non-business use of a juristic person individually, and Article 18(4) provides for the exceptional reasons. Thus, even if real estate is used directly for business of a juristic person, if it falls under any subparagraph of Article 18(3), it shall be determined as non-business real estate unless there is a ground for exception under Article 18(4) unless it falls under any subparagraph of paragraph (4). The existence of justifiable reasons

1. On the first to third grounds

According to Article 18-3 (1) 3 of the former Corporate Tax Act (amended by Act No. 4282, Dec. 31, 1990); Article 43-2 (5) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13195, Dec. 31, 1990); Article 18 (3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1818, Apr. 4, 1990); Article 18 (1) of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1818, Apr. 1, 1990); Article 18-3 (1) of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 13566, Dec. 31, 1993; hereinafter the same shall apply) of the former Corporate Tax Act (amended by Presidential Decree No. 13584, Apr. 13, 1996>

As determined by the court below, if the plaintiff is not a corporation authorized to implement a redevelopment project, but the plaintiff's acquisition and holding of the land within the redevelopment area was not included in the plaintiff's target project on the corporate register, it cannot be deemed that the land of this case was directly used for the plaintiff's own business solely on the ground that the plaintiff acquired and possessed the land within the redevelopment area at the request of the developer while receiving the redevelopment project, or that the land of this case owned by the plaintiff was provided for the redevelopment project.

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

In addition, according to the reasoning of the lower judgment, the lower court appears to have comprehensively taken into account necessary circumstances in determining whether the Plaintiff used the instant land directly for its unique business, and thus, rejected the allegation in the grounds of appeal pointing out the lower judgment on the premise of objection.

2. On the sixth ground for appeal

Article 18(4) of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1818 of Apr. 4, 190) provides that real estate falling under any of the following subparagraphs shall not be deemed non-business real estate, notwithstanding the provisions of paragraph (3). Article 18(1) of the former Enforcement Rule of the Corporate Tax Act provides that real estate shall not be deemed as non-business real estate after its acquisition and for which two years have not passed since its use was prohibited or restricted by the provisions of Acts and subordinate statutes, and Article 18(4)1 of the latter Enforcement Rule of the same Act provides that real estate shall not be directly used for the business of the juristic person for which three years have not passed since its use was prohibited or restricted by the provisions of Acts and subordinate statutes after its acquisition, and Article 20-2(1) of the Enforcement Rule of the Regulation of Tax Reduction and Exemption Act provides that real estate shall not be directly used for the business of the juristic person concerned for one year or more, and Article 54 of the Enforcement Rule of the Corporate Tax Act provides that real estate shall not be used for nonbusiness business:

In full view of Articles 4(1), 5(1), 5(1), 5(2), 5(6), 8, and 65(1) of the former Urban Redevelopment Act (amended by Act No. 5116, Dec. 29, 1995); Article 58(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 15096, Jun. 29, 1996); Articles 2(1)1(c) and 4(1) of the former Urban Planning Act (amended by Act No. 4427, Dec. 14, 1991); if a redevelopment area is designated and announced through an urban planning, the owner of land or building within the redevelopment area becomes subject to certain restrictions on the exercise of rights without the permission of the Mayor or head of Gun; thus, the provision on restrictions on acts in the redevelopment area under the Urban Planning Act constitutes a judgment prohibiting the use of land under Article 18(1)1(c) and (4) of the same Act (see, 1984).196).

According to the facts established by the court below, since the plaintiff has already been designated and publicly announced as an urban redevelopment district prior to the acquisition of the land of this case, the land of this case cannot be viewed as the "real estate prohibited or restricted from the use by law after acquisition" under Article 18 (4) 1 of the Enforcement Rule of the Corporate Tax Act.

Although the lower court’s explanation on this point is inappropriate, it is justifiable in its conclusion that the Plaintiff’s acquisition of the instant land cannot be deemed as prohibited or restricted by statutes.

In addition, Article 18(4) of the Enforcement Rule of the Corporate Tax Act refers only to real estate, the use of which is prohibited or restricted by law after its acquisition, is apparent in its language and text, and since such provision cannot be viewed as contrary to the principle of equality or the principle of no taxation without law under the Constitution, the argument that such provision should be deemed as unconstitutional, unless it is interpreted as

3. On the fourth ground for appeal

According to the facts established by the court below, the plaintiff, as the owner of the land through the instant newspaper located within the Class I redevelopment project district, after completion of redevelopment project by the resolution of the board of directors on July 25, 1984, determined the purpose of the building to be acquired by the plaintiff according to the management and disposal plan. On December 1, 1986, after commencement of construction of a new building within the Class I redevelopment project in the newspaper zone, the construction continues to be completed, and the land was transferred to the newspaper in this case before completion of the building. Thus, the plaintiff's new construction for the acquisition of a private house itself can not be deemed as falling under the preparation for the proper purpose project (see, e.g., Supreme Court Decisions 85Nu902, Oct. 28, 1986; 92Nu19279, Mar. 25, 1994).

However, the Enforcement Rule of the Corporate Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 1818 of Apr. 4, 1990) newly established a provision that the land shall be deemed directly used for business when the construction was commenced to acquire the land and use it for business purposes. In this case, the new provision that the land shall be deemed non-business real estate during the period of suspension when the construction was suspended without justifiable grounds. (Article 1 of the Addenda) The new provision is enforced from the date of its promulgation, and Article 2 of the Addenda is applied from the first business year ending after the enforcement of the Rule (Article 1 of the Addenda). According to the above factual relations, according to the above facts, the land shall be deemed directly used for business purposes for the newspaper of this case in each business year, to which Article 18(6) of the Enforcement Rule of the Corporate Tax

Nevertheless, the court below erred in the misapprehension of legal principles as to non-business real estate. Thus, the ground of appeal pointing this out is with merit within the scope of this scope.

4. On the fifth ground for appeal

According to the reasoning of the judgment below and the records, the court below acknowledged the following facts as to the purpose of the land through the newspaper of this case: (a) on April 17, 1986, the plaintiff constructed a site office and a building for personal accommodation on the site ( Address 1 omitted) and ( Address 2 omitted) among the land due to the newspaper of this case; and (b) commenced construction of a new building in Zone 1 as a newspaper on December 1, 1986 and used it for the purpose of its use during the construction period; (c) however, it did not examine the remaining part of the land due to the newspaper of this case, that is, the plaintiff used the land as a site site of materials such as steel, joint board, etc., with the exception of the land annexed to the building site office, etc. among the land of this case, the court below determined that even if the plaintiff used the remaining part as a material site, it cannot be said that the land was used for the plaintiff's unique duties.

However, the land directly used for a building is a real estate for non-business use only for the portion exceeding the basic area stipulated in Article 18(3)2 of the Enforcement Rule of the Corporate Tax Act. Thus, if part of the land through the newspaper of this case is used as the land for a field office and a private lodging house, as determined by the court below, the basic area stipulated in Article 18(3)2 of the Enforcement Rule of the Corporate Tax Act shall be deemed to be excluded from the land directly used for a building, which is the

In addition, it is established in this court to view that the use of the land acquired by a corporation for the purpose of civil engineering, construction, etc. as an open site for construction materials, etc. is directly used for its unique duties (see, e.g., Supreme Court Decisions 82Nu438, Oct. 11, 1983; 92Nu293, Oct. 23, 1992); and Article 18(3) of the Enforcement Rule of the Corporate Tax Act amended on April 4, 190 as one of non-business real estate; and Article 18(3) of the Enforcement Rule of the Corporate Tax Act provides that “the land for open storage, storage, or storage, which exceeds 1.2 times the maximum area required for the storage and management of products, etc. during the pertinent business year and the immediately preceding two business years, the remainder of the land, other than the land annexed to a building, such as the site office, etc., among the land, should be excluded from non-business real estate if it is used as a open site for iron and other materials.

Therefore, the portion of the newspaper of this case used as a material yard except for the land annexed to a building, such as the site office, among the land in this case, shall not be included in the "real estate not directly used for the business of the juristic person concerned" under Article 18 (3) 1 of the Enforcement Rule of the Corporate Tax Act in each business year of 198 and 1989, and shall be excluded from the non-business real estate within the prescribed scope under Article 18 (3) 18 of the Enforcement Rule of the Corporate Tax Act as amended in each business year of 190 and 1991. However, the judgment of the court below which held it as a whole non-business real estate is erroneous in the misapprehension of legal principles or incomplete hearing

5. On the seventh ground for appeal

Article 18(3) of the Enforcement Rule of the Corporate Tax Act lists real estate for non-business use of a juristic person individually, and provides for the exceptional reasons. Thus, even if real estate is used directly for business of a juristic person, if it falls under any of the subparagraphs of Article 18(3), it shall be determined as non-business real estate unless there is a reason for exception under paragraph (4) of the same Article, and the existence of a justifiable reason shall not be a reason for exception under the Corporate Tax Act to determine whether it constitutes non-business real estate (see Supreme Court Decision 93Nu13469, Nov. 26, 199

In the same purport, the court below is justified in holding that the reasons alleged by the plaintiff concerning the reasons that the land of this case was not used for business purposes are not not included in any of the subparagraphs of Article 18 (4) of the Enforcement Rule of the Corporate Tax Act, and that the land of this case cannot be deemed excluded from non-business real estate, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground for

6. Therefore, the part of the judgment of the court below regarding the business year from 198 to 1991 is reversed, and that part of the case is remanded to the court below. The remaining appeals are dismissed. The costs of appeal concerning this part are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)