[1] The meaning of "use of real estate by a non-profit entrepreneur" under Articles 107, 127 (1), and 186 of the Local Tax Act, which provide for the grounds for non-taxation of acquisition tax and registration tax for a non-profit entrepreneur, and the criteria for determining the scope thereof

[2] The case holding that an apartment used as a company house of a new father who retired from the regular duties of a religious corporation cannot be deemed as a "real estate used directly for its business" under Articles 107, 127 (1), and 186 of the Local Tax Act

[1] In Articles 107, 127(1), and 186 of the Local Tax Act, the term “use of the pertinent real estate for a nonprofit business” means that a nonprofit business operator actually uses the said real estate for a nonprofit business operator’s own purpose. The scope of “use of the said real estate for a nonprofit business” shall be objectively determined based on the actual usage relationship in consideration of the purpose of the nonprofit business operator’s business and acquisition purpose.

[2] The case holding that an apartment used as a company house of a new father who retired from the regular duties of a religious corporation cannot be deemed as a "real estate directly used for its business" under Articles 107, 127 (1), and 186 of the Local Tax Act

[1] Articles 107, 127(1), and 186 of the Local Tax Act / [2] Articles 107, 127(1), and 186 of the Local Tax Act

[1] Supreme Court Decision 200Du3238 delivered on April 26, 2002 (Gong2002Sang, 1278) Supreme Court Decision 2001Du878 delivered on October 11, 2002 (Gong2002Ha, 2744 delivered on December 23, 2005) Supreme Court Decision 2004Da58901 Delivered on December 23, 2005 (Gong2006Sang, 171)

Plaintiff Incorporated Foundation

Netcheon Market

Gwangju High Court Decision 2007Nu39 decided August 30, 2007

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

The grounds of appeal are examined.

Articles 107, 127(1) and 186 of the Local Tax Act provide for the grounds for non-taxation of acquisition tax, registration tax, and property tax according to the usage classification, among them, subparagraph 1 provides for the real estate used by a non-profit entrepreneur for public activities as well as the acquisition, registration, and real estate used for such activities. The proviso of Article 107 and Article 127(1) of the Local Tax Act provides that the real estate acquired and registered within three years from the date of acquisition, registration, and the proviso of Article 186 of the Local Tax Act provides that the acquisition tax and registration tax shall be imposed on the corresponding portion if a part of the property is not used directly for the business, and the property tax shall be imposed on the corresponding portion if a non-profit entrepreneur actually uses the real estate for the business, and the scope of the "use" shall be objectively determined based on the actual use relation of the non-profit entrepreneur's business purpose and the purpose of its acquisition (see, e.g., Supreme Court Decision 200Du8184, Feb. 28, 20008).

According to the reasoning of the judgment below, the court below found that the plaintiff, a religious corporation, the purpose of which is the operation of all churches belonging to the ○○○○ Branch, missionary work, education, etc., acquired the apartment of this case and completed registration for the purpose of using it as a company house for which the new members of the △△△cheon Branch, who belongs to the said ○○○ Branch, and had the new members live there, etc., and as long as the new members of the plaintiff corporation are retired from their regular duties, even if they continue activities under item (g) that guide the new members of the company, they cannot be deemed as having the nature of their duties. Thus, the court below determined that the apartment of this case used as a company house of the retired branch cannot be deemed to be a real estate directly used for such business, and therefore, it does not constitute an object of non-taxation under the Local Tax Act.

In light of the above legal principles and records, we affirm the judgment of the court below as just, and there is no error in the misapprehension of legal principles as to the scope of "use for business" subject to non-taxation under the Local Tax Act as otherwise alleged in the ground of appeal.

Therefore, the appeal is dismissed, and the 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 Shin Young-chul (Presiding Justice)