[1] The case holding that where a school foundation uses a building used as a university teacher (school teacher) as a business incubator and leases part of the building to a business start-up enterprise, it constitutes "profit-making business" under the proviso of Article 107 and the proviso of Article 127 (1) of the former Local Tax Act

[2] The case holding that a school juristic person's real estate acquisition cannot be deemed as a direct use for a business incubator

[1] The case holding that "profit-making business" under the proviso of Article 107 and the proviso of Article 127 (1) of the former Local Tax Act (amended by Act No. 6312 of Dec. 29, 2000) is an act of leasing real estate where a school foundation uses a building used as a university teacher (school teacher) as a business incubator and leases part of the building to a business start-up enterprise

[2] The case holding that if a school foundation uses part of a building already used as a university teacher (school teacher), it cannot be deemed that it acquired the building directly for the use of the business incubator

[1] The proviso of Article 107 and the proviso of Article 127 (1) of the former Local Tax Act (amended by Act No. 6312 of Dec. 29, 2000) / [2] Article 280 (4) of the former Local Tax Act (amended by Act No. 6312 of Dec. 29, 200)

Maram Institute (Attorney Lee Im-soo et al., Counsel for the defendant-appellant)

The head of Gwangju Metropolitan City Mine;

June 3, 2004

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the plaintiff.

Acquisition tax amounting to KRW 28,737,570 on March 11, 2003, and special rural development tax amounting to KRW 2,634,260 on March 11, 2003, and imposition of KRW 29,645,830 on March 12, 2003, and imposition of local education tax amounting to KRW 5,435,060 on March 12, 200, and imposition of KRW 5,435,060 on

4. The imposition of KRW 426,790 on the aggregate land tax of 2001, KRW 263,390 on the urban planning tax, KRW 85,350 on the local education tax, KRW 85,350 on the aggregate land tax of 2002, KRW 655,210 on the aggregate land tax of 202, KRW 354,330 on the urban planning tax, and KRW 131,040 on the local education tax, shall be revoked.

1. Details of the disposition;

A. The plaintiff is a non-profit corporation that aims to conduct specialized education to train middle-class workers in accordance with the educational ideology. On September 30, 1995, the plaintiff purchased 30-4BL education facility site from the Korea Land Development Corporation for the Gwangju Mine-gu High-Tech Industrial Complex 6,116 square meters, and the above land has been divided into 864-4, 34,840.8 square meters, such as monthly 864-1, 33,058 square meters (hereinafter referred to as the "land of this case") in Gwangju Mine-gu, Gwangju as a result of confirmation survey, the size of the above land has increased, and the plaintiff obtained the approval of the use of the above land of this case on March 24, 197, with the construction permission of the remaining school building (school building) installed and operated by the defendant on May 28, 1995, and with the approval of the construction permission of the remaining 34,000 square meters in the same department, 197.198.9.

B. On October 9, 1998, the land of this case was under way by the Building Construction Corporation, was divided into 864-1 8,264.5 m2 (the location of health nursing Dong, support facility Dong, and cultural and social department Dong on the ground above) and 864-6 m24,793 m24,793 m2 (the location of building area 3,605 m2,605 m2 on the ground above). On July 30, 1998, the ownership transfer registration of the land of this case was completed in the name of the Plaintiff on the land of this case.

C. The Jeonnam Science University established and operated by the Plaintiff was designated as a business incubator under Article 5(2) of the Support for Small and Medium Enterprise Establishment Act on April 27, 2000, and used machinery, automobile department, and Dong among the instant buildings as a business incubator. Of these, business start-up companies are located from October 200 to October 200.

D. On December 31, 2002, the Gwangju Metropolitan City Mayor: (a) acquired the instant land and the instant building (hereinafter “the instant real estate”) to use for educational purposes; (b) exempted acquisition tax, etc. according to the usage classification; (c) however, it is confirmed that part of the instant real estate was leased within the grace period (3 years); and (d) 66,98,900 won in total, including acquisition tax and registration tax, which are non-taxable for the land equivalent to the 89.5 square meters of the instant building and the portion of the said building located by the start-up business entity and 3,092; (b) 29,67,390 won in acquisition tax and special rural development tax + 2,64,500 won in registration tax + 29,77,760 won in local education tax + 5,459,259,250 won in local aggregate land tax for 201,2932,7539,719,75,209) and aggregate land tax for the portion of the building that start-up was located (i.

E. On January 30, 2003, the Plaintiff rejected the Defendant’s request for review of the legality of the taxation prior to taxation. However, the Gwangju Metropolitan City Mayor: (i) partially corrected the tax base to reduce the acquisition tax, registration tax, etc. + KRW 66,452,720 + KRW 2,634,260 + registration tax + KRW 29,645,830 + local education tax + KRW 5,435,060; and (ii) accordingly, the Defendant imposed acquisition tax and registration tax, etc. as described in the disposition under Paragraph (1) of the Disposition on March 11, 2003; (iii) on April 9, 2003, the Plaintiff imposed the aggregate land tax + KRW 1,719,90,00 including the aggregate land tax in 201 + KRW 90, KRW 250, + KRW 26,826,00 + KRW 378,368,208; and (iv) aggregate land tax in 2008.36

F. On May 22, 2003, the Plaintiff filed a request to the Minister of Government Administration and Home Affairs to review local taxes. The portion of acquisition tax and registration tax are dismissed, and the portion of aggregate land tax is to be reduced to 50/100 pursuant to Article 280(4) of the Local Tax Act, and is to be reduced to 775,530 won (=the aggregate land tax of 2001 + the aggregate land tax of 426,790 won + the urban planning tax of 263,390 won + the local education tax of 85,350 won + the local education tax of 202 + the aggregate land tax of 1,140,580 won + the aggregate land tax of 655,210 won + the urban planning tax of 354,330 won + the local education tax of 131,040 won, etc.).

[Basis] Facts without dispute, Gap evidence 1-1, 2-2, Eul evidence 2-1, 2-3, Gap evidence 3, Gap evidence 4-5, Gap evidence 6-1, 2-2, Gap evidence 6-1, 2, 3, 5, 6, 10, 11, 12, 13, Gap evidence 7-1, 2, 3, Eul evidence 2-4, 6, Eul evidence 1, Eul evidence 2-1, 2, and 3

2. Whether each of the dispositions of this case is legitimate

A. The parties' assertion

(1) Won high

(A) Under the former Local Tax Act, the acquisition tax and registration tax shall not be imposed on the acquisition of real estate by a non-profit entrepreneur prescribed by the Presidential Decree for the purpose of manufacturing, religion, charity, academic, art and crafts, and other public services, and the aggregate land tax shall not be imposed on the land directly used for such business: Provided, That in a case where all or part of the objects acquired for profit-making business prescribed by the Presidential Decree are used for profit-making business as prescribed by the Presidential Decree, and where a part of the land is not used directly for its original purpose, the aggregate land tax shall be imposed on the land. The former Corporate Tax Act provides that the profit-making business, as prescribed by the Presidential Decree, such as manufacturing, construction, wholesale, retail and consumer goods repair business, real estate, real estate, rental and business service business is 00 square meters per annum and 3,605.85 square meters per annum, and 200 won per annum, the remainder of the enterprise is 000 won or more for rent-making, 200 won per conference, 200 won or more.

(B) According to Article 280(4) of the former Local Tax Act, any real estate acquired by a person designated as an entrepreneur of a business incubator under the Support for Small and Medium Enterprise Establishment Act to use directly for a business incubator shall be exempted from the acquisition and registration taxes. This is, unlike the proviso to Article 107 and the proviso to Article 127 of the former Local Tax Act, that there is no "if the real estate is used for profit-making business as prescribed by the Presidential Decree". The plaintiff uses the machinery department as a business incubator, which the plaintiff acquired for direct use for a business incubator, and even if the business is occupied by a business proprietor on 89.5 square meters of the machinery department and automobile department, the plaintiff used it directly for a business incubator, and thus, the acquisition and registration taxes shall be exempted.

(C) Even if the Defendant imposes acquisition tax and registration tax, it is deemed that the Defendant moved into a 899.5 square meters of the mechanical automobile department, which the start-up business entity uses as a business incubator, and thus, it should be imposed only on the said part of the building. Since each of the dispositions of this case is unlawful.

(2) Sheetion;

(A) Since part of the land for machinery, automobile department, Dong and building used by the Plaintiff as a business incubator among the instant real estate (3,092,84m2) is leased from October 1, 200, it constitutes a for-profit business, since it constitutes a for-profit business, since it is leased from October 1, 200.

(B) Article 280(4) of the former Local Tax Act provides that real estate acquired by a person designated as a business incubator under the Act on the Support for Small and Medium Enterprise Establishment shall be exempted from the acquisition and registration taxes for the real estate to be used directly for a business incubator. Since the former Science and Technology University has already used the mechanical automobile department department, which was completed on December 5, 1998 and used as a teacher for another school, as a business incubator, it cannot be deemed as the real estate acquired to be used directly for a business incubator, and each of the dispositions of this case is legitimate.

B. Facts of recognition

After the Plaintiff purchased the instant land, etc. to newly build the building on the instant land by building the instant building as a teacher, Jeonnam Science University was designated as a business incubator under the Support for Small and Medium Enterprise Establishment Act and used the machinery, automobile department, 805m2 of the instant building as a business incubator. Among them, business start-up enterprises move in on 89.5m2 of the instant building, the remaining part of the machinery, automobile department, etc. excluding the part in which business start-up enterprises move in from the 899m2, including the part in which business start-up enterprises move in, shall be subject to acquisition tax or 40% of the total amount of the acquisition tax or 5m20m2 of the 10m3m2 of the 4m20m2 of the 4m20m2 of the 4m20m2 of the 5m20m2 of the 5m20m2 of the 40m20m2 of the 140m2 of the 400m2 of the m20.

C. Relevant statutes

Attached Form is as shown in the attached Form.

(d) Markets:

(1) Determination on acquisition tax and registration tax portion

(A) Whether it constitutes a profitable business

The purport of the proviso of Article 107 and the proviso of Article 127 (1) of the former Local Tax Act is to grant benefits from the acquisition of real estate and the registration thereof to be directly used for the business by a non-profit entrepreneur in consideration of the public interest of the business operated by the non-profit entrepreneur. However, if such real estate is not used for the profit-making business or within three years from the date of acquisition and registration without any justifiable reason, it shall increase the utility value of real estate and eradicate the speculation of real estate. Since the scope of "direct use" under the above provisions does not have any provision, it shall be objectively determined on the basis of the actual use relationship in consideration of the purpose of the business and purpose of acquisition (see Supreme Court Decision 94Nu8211, 94Nu828, Apr. 14, 195, etc.). According to the above findings, the plaintiff has no reason to lease part of the machinery department and automobile used as the business incubator to the enterprise moving into the business for profit-making business (Article 89).16 of the former Local Tax Act.

(B) Whether it is subject to tax exemption under the former Local Tax Act

Article 280 (4) of the former Local Tax Act (amended by Act No. 6312 of Dec. 29, 2000) provides that any real estate acquired by a person designated as an entrepreneur of a business incubator under the Support for Small and Medium Enterprise Establishment Act to use directly for a business incubator shall be exempted from the acquisition tax and the registration tax. The plaintiff newly constructs five Dongs after the purchase of the land in this case for the new construction of another auxiliary school, uses the mechanical automobile department and the Dong as a business incubator while using them as a teacher, and it is difficult to deem that the plaintiff acquired the building directly for the business incubator. Therefore, this part of the plaintiff's assertion is without merit.

(C) Whether the land is taxed or not

It is reasonable to view that the above occupancy contract includes the part concerning the site used by the start-up business entity in light of the fact that the pre-Namnam Science University entered into an occupancy contract for the building with the start-up business entity, but the start-up business entity is bound to use the building site. Therefore, it is reasonable for the Defendant to impose the acquisition tax and registration tax on the land corresponding to the ratio of the part to the occupied building. Therefore, the Plaintiff

(2) Judgment on the portion of aggregate land tax

Article 234-12 of the Local Tax Act provides for land subject to exemption from the aggregate land tax under the category of use for a non-profit business entity that uses it directly for academic purposes, such as academic purposes. The proviso provides that the land is used for profit-making business or a part of the land is not used directly for its original purpose. Article 280 (4) of the Local Tax Act provides that the real estate used directly by a person designated as an operator of a business incubator under the Support for Small and Medium Enterprise Establishment Act shall be reduced by 50/100 of the property tax and aggregate land tax. As seen earlier, the Plaintiff’s disposal of the machinery, automobile, and consent used as a business incubator is for profit-making business by leasing part of the machinery, automobile, and consent used as a business incubator to a business incubator and uses it for profit-making business. According to the Support for Small and Medium Enterprise Establishment Act, providing part of the business start-up center as a business establishment support center to the Plaintiff, which appears to be one of the essential roles of the business start-up center, and it appears that the Plaintiff and the business incubator are directly used for 20.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-il (Presiding Judge)