Cho High Court Decision 201Do1880 ( November 18, 2011)

It is not subject to comprehensive real estate holding tax because it is difficult to see a building for public works.

In light of the fact that the report of commencement was filed after the tax base date and there is no evidence proving the commencement of construction before the tax base date, and that the contaminated soil improvement project implemented on some land before the commencement cannot be deemed the commencement of construction by the transferor who is the polluter, it shall not be deemed that the building directly used for the public works as of the tax base date

Article 6 of the Gross Real Estate Tax Act

2012Guhap6209 Revocation of Disposition rejecting a request for rectification of global income tax, etc.

Educational Foundation XX

The director of the tax office

July 13, 2012

July 20, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's rejection of each claim for correction against the plaintiff on January 18, 201, 200 won of comprehensive real estate holding tax for 2007 and special rural development tax for 000 won shall be revoked.

1. Details of the disposition;

A. The Plaintiff was established for the purpose of providing education on medical science and health, and is a non-profit corporation that establishes and operates a XX school and a XX school hospital, etc. from November 12, 2002 to May 3, 2006, the Plaintiff acquired 7,923.80 square meters of 7,000 m2 (hereinafter “instant land”).

B. The head of XX Si/Gun/Gu (hereinafter referred to as the "head of Si/Gun/Gu") classified the instant land into land subject to general aggregate taxation pursuant to Article 182(1)1 of the Local Tax Act (wholly amended by Act No. 10221, Jan. 1, 201; hereinafter the same shall apply), and notified the Plaintiff of property tax on September 2007. Accordingly, when calculating the comprehensive real estate tax belonging to year 2007 (tax base date, June 1, 2007), the Plaintiff classified the instant land into land subject to general aggregate taxation, and on December 17, 2007 [the reporting period of comprehensive real estate tax and payment period of comprehensive real estate tax shall be until December 15, 2007 during the relevant year, until the reporting and payment period of comprehensive real estate tax shall be 00 won and KRW 160,000,000,0000,000).

C. On December 15, 2010, the Plaintiff filed a request for correction to the Defendant on the ground that “the instant land is exempt from property tax pursuant to Article 186 subparag. 1 of the Local Tax Act, and thus, Article 182(1)1(a) and Article 6(1) of the Comprehensive Real Estate Holding Tax Act (amended by Act No. 8235, Jan. 11, 2007; hereinafter the same shall apply) are exempt from comprehensive real estate holding tax pursuant to Article 182(1)1(a) and Article 6(1) of the Comprehensive Real Estate Holding Tax Act.” On January 18, 201, the Plaintiff filed a request for correction to refund KRW 00 of the comprehensive real estate holding tax for the instant land and KRW 000 of the special rural development tax for the year 207. In response,

D. Accordingly, the Plaintiff filed an appeal on April 5, 201, and received a decision of dismissal from the Tax Tribunal on November 18, 201.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 5, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Since the Plaintiff commenced construction works for educational and research facilities such as removal of obstacles, destruction of ground, and installation of construction site fences prior to the tax base date ( June 1, 2007), it constitutes a case where a building to be directly used for public works is under construction" under Article 186 subparagraph 1 of the Local Tax Act. Therefore, the instant land constitutes a non-taxable object of comprehensive real estate holding tax pursuant to Articles 186 subparagraph 1 and 182 (1) 1 (a) of the Local Tax Act and Article 6 (1) of the Comprehensive Real Estate Holding Tax Act.

(2) Even if the construction was not commenced before the tax base date, the Plaintiff failed to start the construction due to an order to implement the soil contamination improvement project by the head of the revised head of the Gu after the construction permission, and thus, constitutes “cases where construction was not commenced due to construction regulation measures by an administrative agency after the construction permission” under Article 186 subparag. 1 of the Local Tax Act. Therefore, the instant land constitutes the subject of exemption from comprehensive real estate holding tax pursuant to Articles 186 subparag. 1 and 182(1)1 (a) of the Local Tax Act and Article 6(1) of the Comprehensive Real Estate Holding Tax Act.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) The acquisition of the instant land and the progress of construction

(A) The Plaintiff acquired the instant land for the purpose of establishing the XX Campus New Huncheon Park, which is an educational and research facility, and specific acquisition details are as follows.

Parcel Number

Area of a square meter;

Date of acquisition

transferor

】 City correction area 】 Dong 000

4,485.00

January 3, 2003

Y Transport Co., Ltd.

Dong 00

1,245.20

January 3, 2003

Y Transport Co., Ltd.

Dong 00

1,652.30

December 2, 2002

PPinters Association

Dong 00

97.30

November 12, 2002

PPinters Association

Dong 00

102.20

November 12, 2002

PPinters Association

Dong 00

102.20

October 25, 2004

Park KK

Dong 00

122.40

may 3, 2006

MaximumT

Dong 00

177.20

December 15, 2003

D Kim D Kim

guidance.

7,923.80

(B) On January 2, 2007, the instant land was incorporated into a school facility zone as determined and publicly announced by the Urban Management Planning (Urban Planning Department-59) in XX, and the Plaintiff was engaged in preparatory work for the construction of a new tent as follows.

Date

Details

may 23, 2007

public notice for the selection of a contractor;

May 10, 2007

the Corporation's tender

May 14, 2007

To obtain a construction permit;

May 15, 2007

A corporation shall select an O-development industry corporation (hereinafter referred to as "O-industry development") as a corporation.

May 16, 2007

O Industrial Development and Conclusion of Construction Contract

June 4, 2007

The scheduled date of commencement shall be June 5, 2007 and the report on commencement of construction shall be submitted to the Sung-nam City Mayor.

June 5, 2007

delivery of the commencement report certificate from the Sungnam market

(C) In a contract agreement entered into between the Plaintiff and the O industry development, “O industry development shall begin until June 5, 2007, and at the commencement, the commencement and process schedule shall be submitted to obtain approval, and the construction period shall begin from June 5, 2007 to November 4, 2008.”

(D) Meanwhile, the Plaintiff has paid property tax and comprehensive real estate holding tax every year for 2006 after acquiring the instant land.

(2) Progress of the contaminated soil improvement project

(A) On January 25, 2005, the amended head of the Gu issued an order to implement the project to improve contaminated soil pursuant to Article 19(1) of the Soil Environment Conservation Act (amended by Act No. 1051, Apr. 5, 2011) on the ground that “YY Traffic Co., Ltd. (hereinafter “YY Traffic”) used as a bus stop polluted by oil.”

(B) Accordingly, YY traffic was conducted and completed as follows.

Date and

Details of implementation

From September 13, 2005 to September 20, 2006

The RR Environment Research Institute shall perform the primary soil contamination restoration work and shall undergo a soil contamination level inspection from the Korea Mining Promotion Corporation.

From November 8, 2006 to May 7, 2007

KoreanYY Co., Ltd. perform secondary soil contamination restoration work, and undergo soil contamination level inspection by AAAAU Industry Cooperation Foundation

May 17, 2007

In addition to the report on the completion of soil contamination improvement issued by the Industry-Academic Cooperation Foundation of the AAAU, the report on the completion of the project

May 28, 2007

The head of the Gu requests the supplementation of data;

June 5, 2007

The head of the Gu shall accept the completion report of the project to improve contaminated soil.

(C) On August 22, 2005, the Plaintiff received a real estate name certificate from YW to YW 199,200 land supply from YW YW 19,200. In doing so, the Plaintiff stated that the period of the contaminated soil improvement project was from April 19, 2005 to April 18, 2006.

(D) On the other hand, as to whether the project to improve contaminated soil constitutes a building regulation measure, the head of the amended office responded to the purport that “the project to improve contaminated soil may not be deemed a building regulation measure since it was avoided after the commencement of the construction work.”

[Ground of recognition] Facts without dispute, Gap evidence Nos. 5 through 16, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

D. Determination

(1) Article 186 subparag. 1 of the Local Tax Act provides that "where a building to be directly used for the relevant business is being constructed and where a non-profit entrepreneur prescribed by Presidential Decree fails to commence construction due to the construction regulation measures after the construction permission is granted, the land annexed to the building to be constructed shall be deemed as being directly used for the relevant business," subject to property tax exemption based on the classification of use, and Article 186 subparag. 1 of the Local Tax Act provides that "where a building to be directly used for the public business is being constructed," and the land annexed to the building to be constructed is subject to comprehensive real estate tax exemption in accordance with Article 186 subparag. 1 of the Local Tax Act and "where a building to be directly used for the public business is not started due to the construction regulation measures of an administrative agency after the construction permission is granted, the construction of the building to be built is not subject to comprehensive real estate tax exemption. In addition, the interpretation of tax laws is interpreted in accordance with the principle of no taxation without the law or the interpretation of tax laws, and it is obviously permissible without reasonable interpretation or interpretation without reasonable grounds.

(2) As to the first argument

① The Plaintiff reported the commencement of construction before June 4, 2007, which was the tax base date, and stated on June 5, 2007 the scheduled date of commencement as the date of the report on commencement of construction. ② There is no evidence to prove that the Plaintiff had started construction before the tax base date, such as removal of obstacles, destruction of the ground, and installation of fences at construction sites. ③ The Plaintiff entered into a contract for the development of OO industry on May 16, 2007 and entered into a contract, and “the construction shall start by June 5, 2007,” and submitted a schedule of commencement and process before the commencement of construction, and the construction period shall be from June 5, 2007 to November 4, 2008; ④ the Plaintiff may not be deemed to have reported the commencement of construction of the construction work to improve the contaminated soil under the Building Act (amended by Act No. 8974, Mar. 21, 2008).

(3) As to the second argument

(1) The Plaintiff obtained a building permit before the completion of the project to improve contaminated soil; YY Traffic, which is the one who caused the contamination; 2. The head of the amended Act provides that “it shall be deemed that the project to improve contaminated soil constitutes a construction regulation measure.” 3. The Plaintiff cannot be deemed to have undertaken the project to improve contaminated soil before the commencement of the project, on the ground that “the soil purification business operator under Article 15-6(5) of the Soil Environment Conservation Act (amended by Act No. 1051, Apr. 5, 201) fails to verify the process of purification and the completion of purification pursuant to paragraph (1).” However, it is practically impossible to start the project before the commencement of the project without the verification by the soil-related specialized agency. 4. The amended Act No. 10665, Apr. 5, 2011; 207. 6. 7. 6. 7. 6. 7. 7207 of the contaminated soil improvement project, regardless of its introduction.”

3. Conclusion

Therefore, the disposition of this case is legitimate, and the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.