[1] The meaning of "justifiable cause" under Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act

[2] Whether the occurrence of an event such as a financial accident of an affiliate company or a corporate insolvency constitutes "justifiable cause" under Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (negative)

[3] In a case where a corporation whose main business is real estate sales sells forest land without changing its land category after acquiring forest land and pre-sale, whether it constitutes land for non-business use (affirmative)

[1] "Justifiable reasons" under Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15211 of Dec. 31, 1996) which provides land for non-business use of the corporation subject to acquisition tax refers to the external reasons for which the corporation cannot use its mind, such as prohibition, restriction, etc. under the law. In principle, in the case of the internal reasons of the corporation, it is limited to the case where the corporation's normal effort and promotion for using its unique duties has not been enough for time, and the period has passed without the negligence of the corporation.

[2] The occurrence of an event, such as a financial accident of an affiliate company or a corporate insolvency, is merely an internal circumstance of a corporation, and it is difficult to deem the occurrence to constitute a justifiable cause under Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15211, Dec. 31, 1996).

[3] Even if a corporation mainly runs real estate sales business, the sale of the forest land and the pre-sale without changing the land category shall not be excluded from non-business land unless there exists any justifiable reason otherwise.

[1] Article 112 (2) of the former Local Tax Act (amended by Act No. 5109 of Dec. 29, 1995), Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15211 of Dec. 31, 1996) / [2] Article 112 (2) of the former Local Tax Act (amended by Act No. 5109 of Dec. 29, 1995), Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15211 of Dec. 31, 1996) / [3] Article 84-4 (3) 4 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15211 of Dec. 31, 1996)

[1] Supreme Court Decision 92Nu1773 delivered on June 23, 1992 (Gong1992, 2311) Supreme Court Decision 95Nu7482 delivered on November 10, 1995 (Gong1995Ha, 3951) Supreme Court Decision 98Du15139 delivered on October 8, 199 (Gong199Ha, 2358) / [3] Supreme Court Decision 93Nu15977 delivered on December 28, 1993 (Gong194, 569)

Song Village Construction Co., Ltd. (Law Firm Bag, Attorneys Gyeong-Gyeong et al., Counsel for the plaintiff-appellant)

The head of Nam-gu Gwangju Metropolitan City (Attorney Park Young-chul, Counsel for defendant-appellant)

Gwangju High Court Decision 97Gu1739 delivered on September 10, 1999

Of the judgment below, the part of the judgment below on the imposition disposition of acquisition tax and special rural development tax on the amount of 13,925 square meters of forest land in Nam-gu, Gwangju ( Address 1 omitted), 1,655 square meters of forest land and 188 square meters prior to ( Address 2 omitted), is reversed, and the case is remanded to Gwangju High Court. The remaining appeal by the defendant is dismissed.

The grounds of appeal are examined.

1. As to the first land of this case

A. “Justifiable reasons” under Article 84-4(1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15211, Dec. 31, 1996; hereinafter the same) which provides land for non-business use of a corporation subject to heavy acquisition tax refers to the external reasons that the corporation cannot use in mind, such as prohibition and restriction pursuant to the relevant Acts and subordinate statutes. In the case of a corporation’s internal reasons, it shall be deemed that the corporation’s internal reasons are limited to cases where it has exceeded the period without fault of the corporation as there is no time to make and promote normal efforts to use in its unique duties (see, e.g., Supreme Court Decisions 92Nu1773, Jun. 23, 1992; 95Nu7482, Nov. 10, 195; 98Du15139, Oct. 8, 199).

The court below determined that the plaintiff sold the land of this case within 1 year on May 10, 1995, since the plaintiff acquired the land of this case 1,655 square meters prior to September 20, 195, from among the land of this case No. 1 of this case in the judgment of the court below for the purpose of constructing and selling apartment buildings, ① 13,925 square meters of forest land in Nam-gu, Gwangju ( Address 1 omitted), ② 1,655 square meters of forest land ( Address 2 omitted), and ③ ( Address 3 omitted) 18 square meters prior to September 20, 1995, in each related agency's housing construction business decision procedure, such as construction design, construction of sample house, and advertisement of tenant recruitment, and it continued efforts to achieve the above purpose of business, the plaintiff did not use the land of this case without any justifiable reason since the plaintiff sold all of the land of this case on April 16, 1996, which was acquired within 1 year.

However, it is difficult for the court below to see that the occurrence of an incident, such as the financial misconduct or the Plaintiff's default crisis, which was based on the recognition of justifiable reasons, is merely an internal circumstance of the Plaintiff corporation.

B. Meanwhile, the court below held to the effect that the sale of the Plaintiff’s land No. 1, which was directly used for the Plaintiff’s unique business, is excluded from the corporation’s land for non-business use.

However, according to Article 84-4 (3) 4 of the former Enforcement Decree of the Local Tax Act, "forest land acquired by a corporation which does not engage in the agriculture, livestock or forest business prescribed by the Ordinance of the Ministry of Government Administration and Home Affairs as its main business" shall be deemed land for non-business use of the corporation, notwithstanding the provisions of paragraphs (1) and (2). However, it is only excluded from land for non-business use when changing its land category within one year from the date of acquisition in the proviso

However, since the land No. 1 in this case is transferred to forests and fields, and even if the plaintiff is the main business of real estate sales business, the sale of the land No. 1 in this case without changing the land category shall not be excluded from non-business land unless there exists any justifiable reason otherwise.

C. Nevertheless, the court below erred in the misapprehension of legal principles and the omission of judgment that affected the conclusion of the judgment, and the defendant's ground of appeal pointing this out is with merit, since the court below's decision was justified in selling within one year without using it for its unique business, or it was used directly for the plaintiff's unique business and thus excluded from non-business.

2. As to the second land of this case

In full view of the admitted evidence, the court below found that the plaintiff terminated the sales contract with the above seller while the plaintiff did not pay the down payment and the intermediate payment to the seller of the second land of this case, and received the down payment and the intermediate payment from the new purchaser of the third house. However, there is no somewhat inappropriate fact-finding by the court below as to the reasons why the plaintiff exceeded the obligation under the sales contract of the second land between the above seller and the above seller, but in light of the records, it is not recognized that the plaintiff paid the remainder and acquired the second land of this case. Thus, the court below's decision that the tax disposition of this case was unlawful on the premise that the plaintiff acquired the second land of this case on the premise that the plaintiff did not pay the down payment and the intermediate payment, and there is no violation of the rules of evidence and there is no violation of the rules of evidence that affected the conclusion of the judgment. Accordingly,

3. Therefore, the part of the judgment below regarding the imposition of acquisition tax and special rural development tax on the land No. 1 of this case is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Jae-sik (Presiding Justice)