A. The criteria for determining whether the transfer of a factory constitutes an exemption from the transfer of a factory under Article 6 (2) 2 of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 1988), and the name of business registration

B. In a case where a taxation disposition is an illegal disposition that does not meet the taxation requirements even though there are requirements for exemption or non-taxation, whether it is based on the legitimacy of the illegal disposition on the ground that there is a requirement for collection (negative)

A. The purport of Article 6 (2) 2 of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 198) and Article 3 of the former Defense Tax Act (amended by Act No. 4027 of Dec. 26, 1988) stipulate that capital gains tax and defense tax shall be exempted or exempted in cases of the transfer of a factory for the purpose of relocating the factory shall be exempted or exempted in cases of the transfer of the factory. The purpose of this provision is to assist the transfer of the factory so that the factory can continue to operate the factory even after the relocation by giving benefits of income tax reduction and exemption to the transferor of the building site and building in the previous operation for the relocation of the factory, while preventing the tax reduction and exemption benefits from abuse of real estate. In light of the purpose of legislation and the principle of substantial taxation, in cases where the form and substance are different, the issue of who is eligible for exemption due to the relocation of the factory shall be determined by considering whether the owner of the building site and building in the previous operation of the factory actually operates the factory, and if any person transfers the factory under his name.

B. Even in a case where capital gains tax and defense tax are exempted or exempted due to the transfer of the purpose of factory relocation, if a new factory construction is not constructed within one year from the date of transfer, the tax amount exempted pursuant to Article 18 (5) 1 of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12564 of Dec. 31, 198) shall be collected additionally. This, once the requirements for exemption are met, is provided for in the follow-up management as to whether it would be appropriate for the original purpose of exemption, the tax amount shall be exempted, and it shall be a separate disposition different from the original disposition of imposition. Thus, even if the requirements for exemption or non-taxation exist, it shall be an illegal disposition that does not meet the taxation requirements, and it shall not be deemed legitimate because it is based on the legitimacy of the illegal disposition of imposition.

Article 6 (2) 2 of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 198), Article 3 of the former Defense Tax Act (amended by Act No. 4027 of Dec. 26, 198), Article 18 (5) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12564 of Dec. 31, 1988)

A. Supreme Court Decision 87Nu745 delivered on March 8, 1988 (Gong1988,696) 88Nu3369 delivered on April 11, 1989 (Gong1989,767)

Plaintiff (Attorney Nam-hee, Counsel for the plaintiff-appellant)

Daejeon director of the tax office

Seoul High Court Decision 90Gu11846 delivered on July 19, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. According to the reasoning of the judgment of the court below, the plaintiff and the non-party 1 purchased the above non-party 1's land in the name of the non-party 1's address, the non-party 1's own shares of 71,83 square meters, and transferred the above non-party 1's land to the Korea Land Development Corporation 3,790,075 won on August 31, 198, and the transfer income tax is exempted pursuant to Article 57 (1) of the Regulation of Tax Reduction and Exemption Act, which was enforced at the time of transfer. The plaintiff and the non-party 2's transfer of the above non-party 1's land to the non-party 1's new land in the name of the non-party 1's name, and the non-party 2's transfer of the above land to the non-party 1's new land to the non-party 1's new land for the above non-party 5's transfer of the land to the above non-party 1's new land.

Article 6 (2) 2 of the Income Tax Act and Article 3 of the Defense Tax Act provide that capital gains tax and defense tax shall be exempted or exempted in the case of a transfer of a factory for the purpose of relocating the factory, in order to support the relocation of the factory so that the factory may continue to operate the factory even after the relocation by giving benefits of reduction or exemption of income tax to the transferor of the site and building of the previous factory for the purpose of relocating the factory. Therefore, in this legislative intent and taxation relationship, if the form and substance are different, it shall be imposed in accordance with the substance rather than in the form. In light of the principle of substantial taxation, the issue of whether a factory is eligible for exemption due to the relocation of the factory shall be determined by considering whether the owner of the site and building of the previous factory actually operates the factory, and if the person who has operated the factory actually transfers the factory for the purpose of relocating the factory, it shall be exempted or exempted from capital gains tax and defense tax due to the transfer of the factory, and it shall be done under the name of the transferor, and there is no error in the misapprehension of legal reasoning or misapprehension of legal principles as above.

2. Even in a case where the transfer income tax and defense tax are exempted or non-taxation for the purpose of transferring a factory, if the construction of a new factory is not carried out within one year from the date of transfer, the exempted tax amount under Article 18 (5) 1 of the Enforcement Decree of the Income Tax Act shall be collected additionally. This is defined in the follow-up management as to whether the tax amount should be exempted if the requirements for exemption are met, and then the proper use for the original purpose of exemption should be determined differently from the original disposition of taxation. Thus, in this case, a separate disposition different from the original disposition of taxation. Thus, even if the requirements for exemption or non-taxation exist as in this case, it is an illegal disposition that does not meet the requirements for exemption or non-taxation, and it is not a legitimate disposition on the ground that it is based on the legitimacy of illegal disposition of taxation. The judgment of the court below to this purport is just and there is no error in the misapprehension of legal principles

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.

Justices Kim Yong-ju (Presiding Justice)