(a) Criteria for determining whether a person is subject to an excess of acquisition tax under the Local Tax Act;

(b) The case holding that it would be presumed that an officetel has been acquired for the purpose of a villa unless there is any counter-proof of the special circumstances to be acquired for the main purpose of business in light of the location, surrounding environment, facilities, etc. of the officetel;

A. The reason why acquisition tax is heavy on a villa is because the villa preventss acquisition of non-productive private property and it is deemed that the villa has a ability to pay for the acquisition of such property. In order to be recognized as a villa, the building should be used for the purpose of recreation, summering, or amusement, not for a permanent residence, regardless of the use in the public register, by the owner or lessee of the building, and the user such as the owner or lessee. However, the building does not include any criteria for the location, structure, size, resort facilities, etc. in determining the villa, in light of the purpose of the above heavy taxation, the purpose and circumstance of acquisition, whether the building is located in an area suitable for recreation, etc., the distance from the dwelling place, whether the building is equipped with facilities for the original use and recreation, the size, value of the building, the value of the building, the volume of the building, the type of management and management, the ownership of the house owner and the owner after the acquisition of the building, the objective scope of the use of the house and the circumstances of the user.

B. The case holding that since an officetel is not a business facility, but a general principle of proof that it falls under "A", if the officetel is located in a riverside with beautiful landscapes located in the downtown, and its surrounding areas are installed a swimming pool as a green area, and if the facilities inside and outside of the relevant area are suitable for recreation and the individual facilities are used for recreation and are used for intermittent purposes, officetels is generally constructed in the downtown where it is installed with convenient transportation and its neighboring business support facilities, since it is a business facility, officetels is generally constructed in order to satisfy its usefulness, it is viewed that it is more appropriate for the purpose of the villa rather than for business purposes, and it is rather equivalent to that of the villa to use it for business purposes. Therefore, it is reasonable to presume that the officetels is acquired for the purpose of the villa unless there is any counter-proof of the circumstances that it is acquired for the main purpose of business.

(a)Article 112(2) of the Local Tax Act, Article 84-3(1)1 of the Enforcement Decree of the former Local Tax Act, Article 2(1)13 [Attachment I] 1(b) of the Enforcement Decree of the Building Act, Article 2(1)11(b) of the Enforcement Decree of the Local Tax Act;

Plaintiff 1 et al., Counsel for the defendant-appellant

Southyang Gun;

Seoul High Court Decision 93Gu9011 delivered on August 31, 1993

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the lower judgment, the lower court determined that: (a) among the individual rooms (including shares in each site), Plaintiff 1-301, Plaintiff 2-1-31, and Plaintiff 4-213 acquired each of the above individual offices (including the shares in each site); (b) the individual rooms are facilities available for accommodation; (c) the Plaintiffs or their families use the above individual rooms for rest, summering, or amusement; (d) it appears that the individual office building was used for the purpose of rest, summering, or amusement; (e) the individual office building was located for the purpose of use in the apartment room, and (e) the individual office building was located for use in the apartment room and its neighboring area, and (e) the individual office building was not for use in the apartment room and its neighboring area, and (e) it appears that the individual office building and its neighboring area were not for use in the apartment room and its neighboring area. However, it appears that the individual office and its surrounding area were not for use in the apartment room and its neighboring area.

2. However, Article 84-3 (1) 1 of the Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14481 of Dec. 31, 1994) provides that "a building which is constructed to be used for residential purposes and which is used by an individual or his/her family member (in cases of a corporation, its employee) for recreation, summering, or amusement and not for residential purposes, and land annexed thereto" as to a villa subject to heavy acquisition tax. The reason for heavy acquisition tax on a villa is that a villa prevents the acquisition of non-productive private property to the maximum extent and there is a tax force to acquire such property. Thus, in order to be recognized as a villa, a building which is able to be used for residential purposes, regardless of its use in the public register, its owner or tenant, etc., should be used for residential purposes such as recreation, summering, or amusement, and its use without being separately used for residential purposes from the owner or tenant of the building, and its size and purpose of use should be determined in light of the purpose and purpose of use of the building.

According to the classification of the use of a building under the Building Act, officetels refers to a building in which part of the board and lodging can be conducted mainly in each individual office which is one of the general business facilities (Article 2(1)13 of the Enforcement Decree of the Building Act and Article 2(1)11(b) of the attached Table 1 of the Enforcement Decree of the Building Act). Even if the main purpose of an officetel is for business purposes, it can be used for the residence in the structure itself, so it does not interfere with the view of the building constructed so that officetels can be used for the residence, which is the requirements of the villa (Article 84-3(1)1 of the Enforcement Decree of the former Local Tax Act included a provision that the office can be used for the residence).

The burden of proving that the officetels in this case is not a business facility, but a general principle as well as the burden of proving that it falls under the above Chapter. However, even according to the court below's approval, the officetels in this case is located on the river of North Korea with beautiful landscape, and its surrounding areas are installed a swimming pool as a green area, and the inside and outside facilities of which the plaintiffs acquired are suitable for recreation, and they are used both at ordinary times and intermittently, since it is a business facility, an officetel in this case is constructed in a city where the neighboring business support facilities are installed. In light of the fact that the officetels in this case is constructed in a city where the traffic is convenient and neighboring business support facilities are installed, it is deemed that its location, surrounding facilities, etc. are more appropriate for the purpose of the villa rather than for the business purpose, and it is rather equivalent to that of the above officetels in this case to use it for the business purpose, so it is presumed that the plaintiffs acquired it for the purpose of the villa, as argued by the court below, unless there is any reflect evidence on special circumstances to acquire it as its main purpose

더욱이 기록(특히 원심이 배척하지 아니한 을 제38호증의 기재)에 비추어 보면, 피고는 원고들이 이 사건 개별실을 별장으로 취득한 것이라고 입증함에 있어, 1992.6.21.부터 1992.9. 20.까지 3개월 사이의 전화사용실태를 조사한 결과 전화가 설치되어 있지 아니하거나 혹은 사용일이 고작 5일 내지 17일, 통화수가 25회 내지 61회에 불과할 뿐더러 일과후의 통화수가 더 많고, 전기사용량 사용실태 조사결과도 1㎾내지 83㎾로 분포되어 있으며 각 개별실의 사용량이 일정하지 아니한 사실, 1992.8.29.에서 1992.9.14.까지 7회에 걸친 현장 이용실태 조사결과 상시 사용되는 것이 아니고 주로 주말에 사용되고 있는 사실을 밝혀내고 나아가 원고들의 거주지, 직업, 취득목적, 오피스텔에 사업자등록이 되어 있는지 여부를 조사한 결과를 제출하였는 바, 이러한 자료들은 원고들이 별장용으로 이를 취득한 것으로 추정할만한 중요한 간접사실들이 된다할 것이다.

Nevertheless, the court below held that it is insufficient to recognize that the above actual presumption was removed and that the individual office of this case was actually used for recreation, summering, or amusement purposes, and that the plaintiffs' individual office of this case was not used for the purpose of business as stated in its reasoning merely by proving that the above office of this case was used for design work, preparation of financial related documents, estimate work, product display, export consultation, etc. (as to the plaintiff 4, the above non-party was leased to the non-party for the purpose of product display and export consultation, but according to the records, the above plaintiff acquired it on January 31, 191 and leased it to the non-party on May 7, 192, 1992, and it is not a obstacle in judging whether the above plaintiff acquired it as a separate place of business, and rejected the plaintiffs' application for order to submit a business trip order and a document submission card against the plaintiffs who applied for by the defendant, and it did not affect the conclusion of the judgment by misapprehending the legal principles as to whether it was unlawful or not.

There is reason to point this out.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)