[1] Where a lease company leases rolling stock to the Korea Railroad, the person liable to pay acquisition tax

[2] Requirements for applying the good faith principle or non-taxable practices in tax law relations

[1] If a facility leasing company entered into a sales contract with a manufacturer of rolling stock and received it after paying the price, the facility leasing company shall be liable to acquire rolling stock. The purpose of acquiring rolling stock is to lease rolling stock to the Korea National Railroad, and rolling stock is not to lease rolling stock to a person other than the Korea National Railroad, and it is not different from that of leasing rolling stock. The "person who actually acquired rolling stock" under Article 74 (2) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14041 of Dec. 31, 1993) is a person liable to pay rolling stock, but it is a person who meets the actual requirements, although it does not meet the formal requirements for acquiring rolling stock, it cannot be deemed that the rolling stock, a user of the facility leasing company, actually acquired rolling stock by paying the price agreed to the facility leasing company after the expiration of the lease period. Therefore, it cannot be viewed as a person liable to pay acquisition tax.

[2] In general, in order to apply the principle of trust and good faith to the tax authority’s acts in tax law relations, the tax authority must issue a public opinion list that is the subject of trust to taxpayers. In addition, in order to establish non-taxable practices under Article 18(3) of the Framework Act on National Taxes, the tax authority must not impose taxes on the taxpayer for a considerable period of time as well as on any special circumstance with the knowledge that the tax authority is able to impose taxes on the matter. Such intent must be expressed explicitly or implicitly.

[1] Article 105 (1) and (2) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994); Article 74 (2) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14041 of Dec. 31, 1993) / [2] Articles 15 and 18 (3) of the Framework Act on National Taxes; Article 65 of the Local Tax Act

[1] Supreme Court Decision 92Nu16843 delivered on September 28, 1993 (Gong1993Ha, 2997), Supreme Court Decision 94Nu12241 delivered on February 28, 1995 (Gong1995Sang, 1504) / [2] Supreme Court Decision 90Nu10384 delivered on July 27, 1993 (Gong1993Ha, 2442), Supreme Court Decision 94Nu6574 delivered on April 21, 1995 (Gong195Sang, 194), Supreme Court Decision 94Nu12159 delivered on June 16, 195 (Gong195Ha, 2640), Supreme Court Decision 195Nu1989 delivered on November 16, 1995 (Gong195Ha, 2640)

Korean Development Lease Co., Ltd. (Attorney Sung-min et al., Counsel for the plaintiff-appellant)

The head of Jung-gu Seoul Metropolitan Government

Seoul High Court Decision 96Gu10029 delivered on October 17, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the first ground for appeal

The main text of Article 105(1) of the former Local Tax Act (amended by Act No. 4794, Dec. 22, 1994; hereinafter the same) provides that "acquisition tax shall be imposed on a person who acquires real estate, a vehicle, construction machinery, standing timber, aircraft, golf membership, or condominium membership in the Do (referring to the Do in which golf membership or condominium membership is located) in which the relevant article is located."

As determined by the court below, if the plaintiff entered into a sales contract with the manufacturer of the rolling stock on the rolling stock and received the payment, the plaintiff succeeded to the acquisition of the rolling stock (the rolling stock is excluded from automobiles under the Automobile Management Act, and thus is not subject to registration). The purpose of acquiring the rolling stock is to lease facilities to the KR, and the rolling stock is to lease facilities to the KR, and the rolling stock is not to be deemed to be inappropriate for leasing facilities to a person other than the KR.

In addition, Article 105 (2) of the Local Tax Act provides that "the actual acquisition of real estate, vehicle, construction machinery, standing timber, aircraft, golf membership or condominium membership rights shall be deemed to have been acquired even if the acquisition is not made in compliance with the provisions of the Civil Act, the Mining Industry Act, the Fisheries Act, the Ship Act, the Forestry Act, the Construction Machinery Management Act, the Automobile Management Act, or the Aviation Act, and the owner or transferee of the relevant article shall be deemed to have been acquired, respectively," and Article 74 (2) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14041 of Dec. 31, 1993) provides that "the actual acquisition of ownership of the relevant article by a person who leases a newly acquired vehicle or heavy machine from a facility leasing company under the provisions of the Act on the Promotion of Facilities Leasing Industry shall not be deemed to have been a person liable for tax payment of the said article, but it shall not be deemed that the actual acquisition of the relevant article constitutes a person liable for tax payment of the said 9."

In addition, the main sentence of Article 106 (1) of the Local Tax Act provides that "no acquisition tax shall be imposed on the acquisition by the State (State), Do, Si, Gun, local government association, and foreign government." However, as in the theory of lawsuit, it cannot be deemed that the Plaintiff succeeded to the status of the State (railroad) under the instant facility leasing contract, or that the imposition of acquisition tax against the Plaintiff is the same as the acquisition tax is imposed on the State. Therefore, the Plaintiff may not be exempted from taxation pursuant to the

Therefore, the conclusion of the court below that the plaintiff is liable to pay acquisition tax on the acquisition of the rolling stock of this case is just, and there is no violation of the substance over form principle, such as theory of lawsuit, or misapprehension of legal principles, etc.

2. On the second ground for appeal

Article 15 of the Framework Act on National Taxes, which applies mutatis mutandis to the imposition and collection of local taxes pursuant to Article 65 of the Local Tax Act, provides that "when a taxpayer performs his/her duties, he/she shall be in good faith and sincerity. The same shall apply to the performance of his/her duties." Article 18(3) provides that "after an interpretation of tax-related Acts or a practice in tax administration is generally accepted by a taxpayer, any act or calculation according to such interpretation or practice shall be deemed justifiable, and no tax shall be imposed retroactively by a new interpretation or practice." In general, in tax-related Acts, the tax authority must name a public opinion that is trusted by the taxpayer in order to apply the principle of good faith to the acts of the tax authority. In addition, in order to establish a non-taxation practice under Article 18(3) of the Framework Act on National Taxes, the tax authority must not impose taxes on the taxpayer for a considerable period of time due to any special circumstance with knowledge that the tax authority can impose taxes on the matter. Such intention should be explicitly or implicitly expressed (see, e.g., Supreme Court Decision 10.

According to the reasoning of the judgment of the court below, since the above provision of Article 74 (2) of the Enforcement Decree of the Local Tax Act was newly established on April 6, 1984, the Minister of Home Affairs, on May 28, 1990, authoritative interpretation that a facility leasing company and a lessee bear acquisition tax for operating leases, but the Board of Audit and Inspection, on November 10, 1992, made a registration under the name of a lessee and imposed double acquisition tax on a facility leasing company, and it did not violate the provision of Article 74 (2) of the Enforcement Decree of the Local Tax Act, even if the acquisition tax was paid, it did not constitute a violation of the guidelines for the imposition of acquisition tax on a facility leasing company under the above provision of Article 74 (2) of the Enforcement Decree of the Local Tax Act. The court below's determination that the above provision of guidelines for the imposition of acquisition tax on a facility leasing company and the guidelines for the imposition of acquisition tax on a facility leasing company under the above provision of 194 (2) of the Enforcement Decree.

3. Therefore, the appeal is dismissed and all 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 Lee Yong-hun (Presiding Justice)