[1] The standard for determining whether the acquisition tax constitutes studio-homicide

[2] The case holding that the corridor of tourist hotel rooms does not fall under the common part with high-class recreation centers subject to acquisition tax

[3] Criteria for determining whether a real estate is used for a tourist hotel business excluded from the heavy registration tax

[1] Article 84-3 (1) 1-3 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14041 of Dec. 31, 1993) provides that a high-class recreation center subject to acquisition tax shall be a building for amusement and its appurtenant land as prescribed by the Ordinance of the Ministry of Home Affairs such as a casino place, an automatic gambling place, etc., and Article 46-2 (1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Home Affairs No. 592 of Sep. 10, 193) provides that a building for a high-class recreation center under the above Enforcement Decree shall fall under any of the following subparagraphs, and subparagraph 5 of the above Enforcement Decree provides that "non-class entertainment restaurant among entertainment restaurants under the Food Sanitation Act and a rest-class entertainment restaurant among general amusement restaurants", and the term "studuling" in this context means that once customers can enjoy amusement in a place isolated from other customers, it does not meet the standard of entertainment business place:

[2] The case affirming the judgment of the court below holding that in case where a high-class recreation center is part of a building, its land attached to the building shall be the land equivalent to the ratio of the building area for high-class recreation center to the total floor area of the building among the land attached to the building, and in this case, although there is no express provision about the scope of the building applicable to heavy taxation rate, the total public area of the building except for the part exclusively used for the high-class recreation center and other purposes by applying the above provision mutatis mutandis shall be calculated proportionally in proportion to the area for the high-class recreation center and other purposes, and the total public area of the building shall be calculated proportionally in proportion to the area for the high-class recreation center and other purposes. In this case, the scope of the total public area of the building shall be limited to the area for public use used for the high-class recreation center and other purposes by taking into account the location, structure and general use status, etc. of the building in question, it shall not be deemed that only the number of guest rooms of the 5 to 13th floor and the part of the hotel and the part of the ground.

[3] Under Article 101 (1) 7 and (2) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 12573 of Dec. 31, 1988), real estate acquired to use for a tourist hotel business under the Tourism Promotion Act is excluded from the subject of registration tax, but is also used for other types of business, and it is the subject of heavy taxation. Thus, whether real estate is used for a tourist hotel business for which registration tax is excluded shall be determined by comprehensively taking into account the purpose of acquiring the real estate, actual relation of use, and relation with the performance of its unique business (the case holding that the age club, private letter, business place, etc. attached to the tourist hotel building is not subject to registration tax)

[1] Article 112 (2) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994); Article 84-3 (1) 1-3 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14041 of Dec. 31, 1993); Article 46-2 (1) 5 of the former Enforcement Rule of the Local Tax Act (amended by Ordinance No. 592 of Sep. 10, 1993); Article 112 (2) of the former Local Tax Act (amended by Presidential Decree No. 4794 of Dec. 22, 1994); Article 84-3 (1) 1-3 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14041 of Dec. 31, 1993); Article 46-2 (1) 1 of the former Enforcement Rule of the Local Tax Act (amended by Presidential Decree No. 1481 of Dec. 13, 197, 198)

[1] Supreme Court Decision 93Nu74 delivered on April 27, 1993 (Gong1993Ha, 1613), Supreme Court Decision 94Nu16083 delivered on June 13, 1995, Supreme Court Decision 97Nu9154 delivered on September 26, 1997 (Gong1997Ha, 333) / [2] Supreme Court Decision 97Nu1426 delivered on April 11, 1997 (Gong197Sang, 1498) / [3] Supreme Court Decision 93Nu1513 delivered on November 23, 1993 (Gong194Sang, 219)

Limit of Co., Ltd. (Attorney Kim Ba-young, Counsel for defendant-appellee)

Head of Gangseo-gu Busan Metropolitan City

Busan High Court Decision 96Gu2255 delivered on April 17, 1997

All appeals are dismissed. The costs of appeal are assessed against each party.

1. We examine the Plaintiff’s grounds of appeal.

Article 84-3 (1) 1-3 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14041 of Dec. 31, 1993) provides that "a building for a entertainment place prescribed by the Ordinance of the Ministry of Home Affairs, such as a casino place, an automatic gambling place, etc. concerning a high-class recreation center subject to acquisition tax, and land attached thereto" and Article 46-2 (1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Home Affairs No. 592 of Sep. 10, 193; hereinafter the same shall apply) provides that a building for a high-class recreation center under the above Enforcement Decree shall fall under any of the following subparagraphs, and subparagraph 5 of the above Enforcement Decree provides that "a place of entertainment place" among entertainment restaurants under the Food Sanitation Act and general amusement restaurants, so that customers can enjoy amusement at the place isolated from other customers, and it is not a standard for determining whether a guest room is actually engaged in entertainment place (see, e.g., Supreme Court Decision 93196Nu4.

In the same purport, the court below is just in holding that the studio-gu business place in this case, which is equipped with 9 guest rooms installed through a corridor connected to the entrance, constitutes studio-gu business place, and there is no error of law by misunderstanding the legal principles as to buildings for high-class recreation centers, such as theory of lawsuit. There is no reason to discuss.

2. We examine the defendant's grounds of appeal.

(1) On the first ground for appeal

Article 46-2 (2) of the Enforcement Rule of the Local Tax Act provides that where a high-class recreation center is installed in a part of a building, the land annexed to the building shall be the land equivalent to the ratio of the area of the building used for a high-class recreation center to the total floor area of the building among the land annexed to the building. In such cases, although there is no express provision concerning the scope of the building subject to heavy taxation, the entire area of the building except for the part used for a high-class recreation center and other purposes by applying the above provision mutatis mutandis shall be calculated by dividing the total area of the building into the high-class recreation center and other purposes by the proportion of the area used for other purposes. In this case, the scope of the total area of the building shall be deemed only the area used for other purposes by taking into account the location, structure and the actual condition of the use of the building (see Supreme Court Decision 97Nu

According to the reasoning of the judgment below, the court below determined that the part of each corridor on the fifth and third floor above the ground level, which only guest rooms are guest rooms, and the part which is jointly used with high-class recreation centers, considering the location, structure, and general use conditions of the building in the instant tourist hotel building, and that the above recognition judgment of the court below is legitimate, and there is no error of law such as misunderstanding of facts, incomplete deliberation, or misunderstanding of legal principles. There is no reason to discuss.

(2) On the second ground for appeal

According to Article 101 (1) 7 and (2) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 12573 of Dec. 31, 1988), real estate acquired to be used in tourist hotel business under the Tourism Promotion Act is excluded from the heavy registration tax, but where the real estate is used concurrently for other types of business. Whether the registration tax and the provisions of the registration tax are real estate to be used in tourist hotel business excluded should be determined by considering the purpose of acquiring the real estate, the actual use relationship, and the relation with the performance of their unique duties (see Supreme Court Decision 93Nu1513, Nov. 23, 1993).

According to the reasoning of the judgment below, the court below held that, in light of the fact that the plaintiff obtained approval for the change of the business plan under the Tourism Promotion Act as well as the size, number, etc. of the tourist hotel in this case as the area of the tourist hotel in this case and the type, area, etc. as incidental facilities to the tourist hotel, the court below held that it cannot be subject to heavy registration tax because part of the land of this case is suitable for accommodation facilities for tourists' rest and that it constitutes part of the entertainment facilities for other types of business, other than the tourist hotel business, which is a place of business for other types of business than the tourist hotel business. In light of the records and the above legal principles, the above determination of recognition by the court below is just, and there is no error of law such as misapprehension of legal principles, such as novel theory, etc.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)