2014Nu359 Acquisition tax, etc. and other disposition of dismissal of request

School Foundation of Hansung

Law Firm A, a legal entity A

Head of the Busan Metropolitan Government Maritime Affairs Office

Attorney Lee Jae-hoon, Counsel for the plaintiff-appellant

Busan District Court Decision 2012Guhap6316 decided May 31, 2013

Busan High Court Decision 2013Nu1775 Decided September 27, 2013

Supreme Court Decision 2013Du21953 Decided March 13, 2014

June 13, 2014

June 27, 2014

1. The plaintiff's appeal is dismissed.

2. The plaintiff shall bear the total costs of the lawsuit after filing the appeal.

The judgment of the first instance shall be revoked. The defendant's disposition rejecting correction of the acquisition tax of KRW 74,169,440, the special tax in agricultural and fishing villages of KRW 3,708,470, and the local education tax of KRW 7,416,940, which the defendant rendered to the plaintiff on May 7, 2012

1. Details of the disposition;

A. The Plaintiff is a school foundation that establishes the Gsung University and provides university education.

B. On February 7, 2012, the Plaintiff purchased a total of 20 units, including 1766-1 unit SH (SH) unit 176-1 unit 204 unit 20 units, etc. (hereinafter “each of the instant officetels”), and completed the registration of ownership transfer in the name of the Plaintiff on April 13, 2012 with respect to each of the instant officetels.

C. On the other hand, on April 12, 2012, the Plaintiff reported and paid acquisition tax for KRW 1,865,236,240 on the tax base amount for KRW 74,169,440, special rural development tax, KRW 3,708,470, and KRW 7,416,940 on each of the instant officetels to the Defendant.

D. After that, the Plaintiff acquired each of the instant officetels for the purpose of providing foreign former teachers working in the Gungsung University as a lodging house. Accordingly, each of the instant officetels is a real estate acquired to use directly for the Plaintiff’s business and is eligible for exemption from acquisition tax. On May 2, 2012, the Plaintiff filed a request for correction to the Defendant for the refund of acquisition tax, etc. reported and paid as above. However, on May 7, 2012, the Defendant issued a disposition to refuse the request for correction on the ground that each of the instant officetels was not a real estate used directly for the Plaintiff’s business (hereinafter “instant disposition”).

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on July 13, 2012, but the appeal was dismissed on November 6, 2012, and the decision was served on the Plaintiff on November 9, 2012.

【Unsatched Facts, Gap evidence 1, 2, 3, Gap evidence 4-1, 2, Eul evidence 1-1, 2, Eul evidence 3, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

As the number of foreign teachers increases, the Plaintiff acquired each of the instant officetels in order to provide foreign teachers with accommodation as a result of the increase in the number of foreign teachers, and actually uses it as a lodging place for foreign teachers. Given the characteristics of universities located in areas other than Seoul, it is essential to secure foreign teachers to provide such lodging place.

Therefore, the acquisition of each of the instant officetels constitutes "a case where a person operating a school acquires real estate to use it for the pertinent business" and falls under the subject of exemption from acquisition tax, and thus, the prior defendant's disposition of this case is unlawful on different premise.

B. Relevant statutes

As shown in the attached Form.

C. Determination

1) The main sentence of Article 41(1) of the former Restriction of Special Local Taxation Act (amended by Act No. 11618, Jan. 1, 2013) provides that the acquisition tax on the real estate acquired by a person operating a school under the Higher Education Act to use for the pertinent business shall be exempted until December 31, 2012. The term "real estate is actually used for a nonprofit business." The term "use of the pertinent real estate" means that the real estate is actually used directly for a nonprofit business, and the scope of "use for the said business" should be objectively determined based on the actual usage relationship in consideration of the purpose of business and acquisition by the relevant nonprofit business operator (see Supreme Court Decision 2009Du4708, May 28, 2009). If a nonprofit business operator provides a member with a company house or a lodging to a partner, the partner's status of tracking the necessity for the business activities of the said non-profit business operator, and the nature of staying in the company house or lodging is not directly used for the purpose business or its business.

2) Comprehensively taking account of the overall purport of the arguments in Gap evidence 5-1, 2, Gap evidence 7, 8, 12, 13, 19, and 20 testimony from the court of first instance, the plaintiff recruited foreign teachers for the purpose of improving the foreign language education environment and responding to the international trend of the development of universities. Non-Korean teachers employed by the plaintiff work as assistant professors, ice professors, etc. in the Ssung University English English Department, German Regional Department, French Regional Department, French Department, Japanese Language Department, Japanese Language Department, Administrative Department, International Trade Department, International Trade Department, Accounting Department, Chinese University, Music Department, etc., and the plaintiff acquires each of the instant officetels in order to provide the residential convenience of foreign teachers in areas other than the Ssung University.

Considering the above circumstances, in light of the status and status of foreign teachers working in the Gungsung University, the status of their work, and the location and purpose of the officetel of this case, it cannot be deemed that foreign teachers working in the Gungsung University are in a critical tracking position for university education, which is the Plaintiff’s objective business, or that they stay in each officetel of this case. Thus, each officetel of this case cannot be deemed directly used for the Plaintiff’s purpose business.

Therefore, the Plaintiff’s assertion that each of the instant officetels is real estate used directly for the Plaintiff’s intended business and is subject to exemption from acquisition tax is without merit, and the instant disposition is lawful. 3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.

Efficacy Officer (Presiding Judge)

Long-term Management

has already been fixed

(Attached Form)

Relevant statutes

▣ 구 지방세특례제한법(2013. 1. 1. 법률 제11618호로 개정되기 전의 것 )

Article 41 (Exemption for Schools and Foreign Educational Institutions)

(1) Acquisition tax on real estate acquired by a person who operates a school under the Elementary and Secondary Education Act and the Higher Education Act, a foreign educational technician under the Special Act on Establishment and Management of Foreign Educational Institutions in Free Economic Zones and Jeju Free International City, or the Special Act on the Development of Enterprise Cities to use for the relevant business shall be exempted until December 31, 2012: Provided, That exempted acquisition tax on the relevant portion shall be collected as a penalty in any of the following cases:

1. Where it is found that it is used for the relevant purposes without justifiable grounds by the time three years pass from the date of acquisition;

2. Where it is sold, donated, or used for any other purpose when it has been used directly for the relevant purpose for less than two years. The end;