[1] In a case where a person who acquired real estate for the purpose of constructing an apartment-type factory has allowed a third party to use it for other purposes, whether it falls under "the case of sale in lots or lease for other purposes than the pertinent business or venture business" under Article 21 (2) of the former Ordinance on the Reduction and Exemption of Do Taxes (affirmative

[2] Whether the apartment-type factory " under the former part of Article 21 (1) 3 of the former Ordinance on the Reduction and Exemption of Do Taxes of Gyeonggi-do includes any supporting facilities other than factory facilities and venture business facilities (affirmative), and whether it constitutes the grounds for additional collection under Article 21 (2) of the former Enforcement Decree of the Industrial Cluster Development and Factory Establishment Act in the case of selling in lots and leasing factory facilities by changing the use of factory facilities to support facilities (negative)

[1] Articles 21(1)3 and 21(2) of the former Gyeonggi-do Ordinance on Reduction and Exemption of Do Taxes (amended by Act No. 3827, Dec. 30, 2008) intend to provide tax benefits to those who intend to construct and use an apartment-type factory with the aim of facilitating industrial clustering and supporting the smooth establishment of a factory. It is clear that the purpose of acquiring real estate for the purpose of constructing an apartment-type factory is not to give such benefits to those who use the apartment-type factory for other purposes. Thus, even in a case where a person who acquired real estate for the purpose of constructing an apartment-type factory has allowed a third party to temporarily use the apartment-type factory for other purposes, barring special circumstances such as that such free use would be temporarily free in the status of possession and lease as an apartment-type factory, the tax amount exempted by the provisions of Article 21(2) of the former Ordinance on Reduction and Exemption of Do

[2] In full view of the legislative purport of Article 2 subparag. 6 and Article 28-5(1) of the former Industrial Cluster Development and Factory Establishment Act (amended by Act No. 9426 of Feb. 6, 2009), Articles 4-5 and 36-4(2) and (3) of the former Enforcement Decree of the Industrial Cluster Development and Factory Establishment Act (amended by Presidential Decree No. 21665 of Aug. 5, 2009) and the legislative purport of Article 21(1) subparag. 3 of the former Ordinance on Reduction and Exemption of Gyeonggi-do Tax (amended by Ordinance No. 3827 of Dec. 30, 2008), support facilities, other than apartment-type factory facilities and venture business facilities, are included in apartment-type factory facilities and apartment-type factory facilities, and therefore, it does not fall under the grounds for reduction and exemption of the Gyeonggi-do Ordinance on Reduction and Exemption of the Industrial Cluster Development and Factory Establishment.

[1] Article 21(1)3 and (2) (see current Article 24(1) and (2) (see current Article 24(1)) of the former Gyeonggi-do Ordinance on the Reduction and Exemption of Do Taxes (Amended by Presidential Decree No. 3827, Dec. 30, 2008); Article 2 subparag. 6 (current Deletion) of the former Industrial Cluster Development and Factory Establishment Act (Amended by Act No. 9426, Feb. 6, 2009); Article 2 subparag. 6 (current Deletion) of the former Ordinance on the Reduction and Exemption of Do Taxes (Amended by Act No. 9426, Feb. 6, 2009); Article 2(6) and Article 28-5(1) of the former Industrial Cluster Development and Factory Establishment Act (Amended by Presidential Decree No. 2165, Aug. 5, 2009); Article 4-5(2) and (3) of the former Enforcement Decree of the Industrial Cluster Development and Factory Establishment Act (Amended by Presidential Decree No. 21308(3)

[2] Supreme Court Decision 2007Du11184 decided Nov. 26, 2009 (Gong2010Sang, 59)

Plaintiff

The head of Seongbuk-gu Seoul Metropolitan Government

Seoul High Court Decision 2009Nu8252 decided Oct. 20, 2009

The part of the judgment of the court below pertaining to the collection disposition of additional collection as to items 106 through 112 above is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal is dismissed.

The grounds of appeal are examined.

1. Article 21(1)3 of the former Gyeonggi-do Ordinance on Reduction and Exemption of Do Taxes (amended by Act No. 3827, Dec. 30, 2008; hereinafter “former Ordinance”) provides that “The real estate acquired by a person who acquires real estate to build an apartment-type factory under subparagraph 6 of Article 2 of the Industrial Cluster Development and Factory Establishment Act to use directly for the relevant business shall be exempted from acquisition tax, and where such real estate is registered within two months from the date of acquisition, it shall be exempted from registration tax.” Article 21(2) of the former Ordinance provides that “Where a person who acquired real estate to sell or rent a factory sells or rents it for purposes other than the relevant business or venture business within five years from the date of issuance of approval for use of the building, the acquisition tax and registration tax exempted under paragraph (1) shall be collected additionally for the relevant portion, so that the apartment-type factory can activate industrial clustering by providing the person who intends to construct and use the apartment-type factory with tax benefits, and thus, the purpose of the above Ordinance is clear that another person who acquires the apartment-type factory for free use.

The court below acknowledged the facts as stated in its decision after comprehensively taking account of the adopted evidence. The court below held that the plaintiff's act of allowing the plaintiff's wife 108 or 110 underground of the apartment-type factory of this case to use the apartment-type factory of this case as a furniture exhibition or a furniture sales house constitutes "the case of selling in lots or leasing for other purposes" under Article 21 (2) of the former Ordinance. In light of the above legal principles and records, the above judgment of the court below is just and there is no error of law such as misunderstanding of legal principles as to

2. Article 2 subparag. 6 of the former Industrial Cluster Development and Factory Establishment Act (amended by Act No. 9426 of Feb. 6, 2009; hereinafter referred to as the "former Act") and Article 4-5 of the former Enforcement Decree of the Industrial Cluster Development and Factory Establishment Act (amended by Presidential Decree No. 2165 of Aug. 5, 2009; hereinafter referred to as the "former Enforcement Decree") provide that "the apartment-type factory means a collective building with three or more stories on which six or more factories can occupy the same building at the same time." Article 28-5 (1) of the former Enforcement Decree of the Act provides that "facilities for manufacturing, research and development of apartment-type factory and other businesses prescribed by Presidential Decree" under Article 2 subparag. 1 of the former Enforcement Decree of the Act (amended by Presidential Decree No. 21665 of Aug. 1, 2009; hereinafter referred to as the "Ordinance No. 3600 of the former Enforcement Decree of the Building Act") shall be amended to provide for the purpose of Article 3 subparag. 4 of the former Ordinance No.

According to the reasoning of the judgment below, the court below determined that the "cases of sale in lots or rent for any purpose other than the relevant business" in Article 21 (2) of the former Ordinance refers to cases of sale in lots or rent for any purpose other than a factory defined in Article 2 (1) of the former Ordinance, i.e., a place of business for manufacturing business, and the cases of sale in lots or rent for any purpose other than a factory defined in Article 2 (1) 1 of the former Ordinance constitutes a ground for additional collection under Article 21 (2) of the former Ordinance.

However, we cannot accept the judgment of the court below as it is.

First, according to the reasoning of the judgment below and the records, among the buildings of this case, 106 underground and 107 underground were used as a sales office of the non-party corporation, and among the buildings of this case, 108 underground, 109 underground and 110 underground among the buildings of this case were used as a furniture exhibition center or a furniture sales place, and the building of this case was used as a restaurant. For this reason, among the buildings of this case, 111 underground and 112 underground among the buildings of this case can be known as being used as a restaurant. In light of the actual purpose, the building of this case is likely to constitute a neighborhood living facilities as provided in subparagraphs 3 and 4 of attached Table 1 of the Enforcement Decree of the Building Act in light of its actual purpose. If each of the above buildings falls under a neighborhood living facilities, if it does not exceed the scope of Article 36-4 (3) of the former Enforcement Decree, it shall not be deemed that

Therefore, the court below should have deliberated and judged whether the part of the building of this case 106 or 112 underground constitutes neighborhood living facilities, and whether the purpose of use should be changed within the scope of Article 36-4(3) of the former Enforcement Decree. However, the court below determined that the collection disposition of this case on each of the above building was legitimate for the reasons stated in its reasoning. Thus, the court below erred in the misapprehension of legal principles on the subject of collection of acquisition tax, etc. under Article 21(2) of the former Ordinance, thereby failing to exhaust all necessary deliberations.

3. The grounds of appeal specify the grounds of appeal and states specific and explicit reasons as to which part of the judgment below is in violation of the law, and in the grounds of appeal submitted by the appellant, it is inevitable to treat the grounds of appeal as not submitting the grounds of appeal in the absence of such reasons. However, the petition of appeal or the grounds of appeal in this case does not contain any mention as to how the additional collection disposition on subparagraphs 215 and 218 above is in violation of the law, and it cannot be viewed that there was a submission of the grounds of appeal as to the above part.

4. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part of the judgment below regarding the disposition of additional collection as to subparagraphs 106 through 112 above is reversed, and this part of the case is remanded to the court below for a new trial and determination. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Shin Young-chul (Presiding Justice)