Plaintiff

The head of Seongbuk-gu Seoul Metropolitan Government

January 19, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of acquisition tax of KRW 39,614,010 against the Plaintiff on June 11, 2007, registration tax of KRW 16,06,280, local education tax of KRW 2,941,810, and special rural development tax of KRW 3,502,880 is revoked (the Plaintiff stated the date of the instant disposition on June 10, 2007, but it appears to be a clerical error due to mistake).

1. Details of the disposition;

A. On February 10, 2006, the Plaintiff built an apartment-type factory on the ground level 8th underground floor (hereinafter “instant building”) on the land surface of the Jung-gu, Sung-gu, Jung-gu, the other party (detailed lot number omitted), and on March 2, 2006, the Plaintiff was exempted from acquisition tax and registration tax pursuant to Article 21(1)3 of the Gyeonggi-do Ordinance on the Reduction and Exemption of Do Taxes (amended by Ordinance No. 3827, Dec. 30, 2008; hereinafter “Ordinance”) on the ground that he acquired an apartment-type factory under Article 2 subparag. 6 of the Industrial Cluster Development and Factory Establishment Act with respect to 9 factories except neighborhood living facilities among the instant building.

B. After that, as a result of the on-site investigation on the instant building, the Defendant imposed and notified the acquisition tax of KRW 46,291,060, registration tax of KRW 18,690, local education tax of KRW 3,450, local education tax of KRW 3,438,750, KRW 476, and KRW 320,320, respectively, on the ground that the Plaintiff leased 13 houses, among the instant buildings, including 101, 106 through 112, and 215 through 218, for other purposes than a factory, for other purposes (hereinafter the instant disposition) on June 11, 2007, under Article 21(2) of the Ordinance.

C. On September 13, 2007, the defendant confirmed that the plaintiff had not leased subparagraph 101 and 102 underground, and reduced the acquisition tax amount of KRW 6,677,050, registration tax of KRW 2,684,170, local education tax of KRW 496,940, and special rural development tax of KRW 573,440 from the disposition of this case (the total amount of the disposition of this case is KRW 62,064,980).

[Reasons for Recognition] The entry in Eul evidence 1-1, 2, Eul evidence 2-1, 2-2, Eul evidence 3-1, 2, Eul evidence 4 and 5, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) In the case of subparagraphs 106 and 107 below, the non-party 1 corporation leased the apartment-type factory to the non-party 1 corporation (the non-party 1 corporation in the judgment of the Supreme Court). The non-party 1 corporation constructed the apartment-type factory and leased the above room to use it as a place where the construction-related employees of the above factory work. According to Article 28-5 (1) 1 of the Industrial Cluster Development and Factory Establishment Act and Articles 6 (2) 4 and 36-4 (1) 2 of the Enforcement Decree of the same Act, the construction technology and engineering service business can occupy the apartment-type factory. Thus, it is reasonable to deem that the apartment-type factory is leased for the use of the office, the disposition of this case imposing acquisition tax, etc. is unlawful and unfair.

The instant disposition that deemed that the Plaintiff sold or leased the instant building for another purpose, while the place where defective products and damaged products are repaired and stored among the goods of furniture stores operated by the Plaintiff along with the Plaintiff’s wife (No. 108 of the instant building), which was an office for the sale and lease of the instant building, is illegal and unjust.

Article 111 of the Civil Code No. 111 of the Civil Code refers to the case where the plaintiff and the owner of the restaurant business from the ground 113 agreed to obtain permission for the change of the use of the 111 room underground from the factory to the neighborhood living facilities and conclude a lease contract. However, the above ground No. 113 of the Civil Code was a restaurant construction as well as the case of the 111 underground in order to reduce the cost at the time of the interior construction, and it was not leased and used as the restaurant.

x) The Plaintiff leased No. 112 as well as the 115 underground, which is a neighborhood living facility at the time of the lease contract with the lessee. Although the lessee was willing to use the kimchi No. 112 at the time of the lease as a kimchi manufacturing factory, and as to the ground No. 115, it was difficult for the lessee to implement the kimchi manufacturing factory without permission, the size of the restaurant was expanded to 112 underground and changed the use without permission. The instant disposition of collecting acquisition tax, etc. exempted until the lessee's unauthorized change of use without permission is unlawful and unjust.

(v)Nos 215 to 218 on the ground of the Plaintiff leased a screen golf operator’s license with a lessee at the time of entering into a lease agreement with the lessee for the purpose of manufacturing, displaying, and selling the screen golf operator’s room, and the lessee began to operate the business at his own discretion on the ground of the sports facility business (health club) due to changes in the business conditions, and thereafter, arbitrarily changed the use of the business area without permission by expanding the business area from Nos. 215 to 218 on the ground of the factory without permission. The instant disposition to collect acquisition tax, etc. exempted until the time when the lessee has changed the use without permission

(b) Related statutes;

Local Tax Act (Amended by Act No. 8864, Feb. 29, 2008)

Article 7 (Exemption from Taxation and Unequal Taxation for Reasons of Public Interest, etc.)

(1) A local government is authorized not to impose tax, if it is considered improper to impose tax for reasons of public interest, etc.

(2) If it is necessary for reasons of public interest, etc., the local government may impose tax on an unequal basis.

Article 9 (Municipal Ordinances for Exemption from Taxation, etc.) When any local government intends to impose an exemption from taxation, an unequal taxation or a partial taxation under Articles 7 and 8, it shall be prescribed by Municipal Ordinance of the relevant local government with the permission of the Minister of Government Administration and Home Affairs.

Gyeonggi-do Ordinance on Reduction and Exemption of Do Taxes

Article 21 (Reduction and Exemption for Agricultural Special Products Production Complexes, etc.)

(1) Any real estate acquired by a person falling under any of the following subparagraphs to use directly for the relevant business (excluding the case of succession and acquisition of the real estate already used for business) shall be exempted from the acquisition tax, and where such real estate is registered within 2 months from the date of acquisition, the registration tax shall be exempted: Provided, That in the case of subparagraphs 1 through 2, this shall not apply in the overconcentration control region as provided in

3. A small and medium enterprise owner who has acquired real estate to build an apartment-type factory under subparagraph 6 of Article 2 of the Industrial Cluster Development and Factory Establishment Act, and who intends to carry on a business or venture business by locating in an apartment-type factory under Article 28-5 (1) 1 and 2 of the same Act.

(2) Where a person who intends to operate a business by relocating a factory under paragraph (1) falls under any of the following subparagraphs, or where a person who has acquired real estate to sell in lots or rent a factory fails to start a construction work without justifiable grounds within one year from the date of acquisition thereof, or sells in lots or leases it for any purpose other than the relevant business or venture business within five years from the date of issuance of approval for use of the building, the exempted acquisition tax and registration tax for the relevant portion shall be collected additionally

1. Where the factory is operated or the business is transferred to another person before commencing the business;

2. Where a person fails to manufacture or operate designated products within six months from the date of issuance of approval for use of facilities necessary for a factory or business without justifiable grounds;

3. Where real estate is not used directly for a designated factory or business within one year from the date of its acquisition without justifiable grounds, or where it is sold or used for other purposes within five years.

The Industrial Cluster Development and Factory Establishment Act;

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "factory" means a place of business prescribed by Presidential Decree for conducting manufacturing business prescribed by Presidential Decree, equipped with buildings or structures, manufacturing facilities, such as machinery and equipment which constitutes manufacturing processes, and their ancillary facilities (hereinafter referred to as "manufacturing facilities, etc.");

6. The term “ apartment-type factory” means the collective multi-story building, prescribed by the Presidential Decree, which can house several factories at the same time;

Article 28-5 (Occupancy of Apartment-Type Factory)

(1) Facilities that may occupy an apartment-type factory shall be as follows:

1. Facilities for conducting manufacturing business, research and development business, and other business prescribed by Presidential Decree;

2. Facilities for running a venture business under Article 2 (1) of the Act on Special Measures for the Promotion of Venture Businesses;

3. Other facilities as prescribed by the Presidential Decree for assistance in the production activities of occupant enterprises.

(2) The scope and scale of facilities permitted to occupy the apartment-type factory under the provisions of paragraph (1) 1 shall be prescribed by the Presidential Decree.

Enforcement Decree of the Industrial Cluster Development and Factory Establishment Act

Article 6 (Qualification for Occupancy in Industrial Complex) (1) The term “qualification as prescribed by the Presidential Decree” in subparagraphs 11 and 12 of Article 2 of the Act means the qualifications falling under each of the following subparagraphs:

1. The business shall be necessary for supporting the business of the industry and facilities or occupant enterprises which are the object of occupancy according to the basic management program of the industrial complex;

2. Deleted.

3. The authorization, permission, etc. under the relevant Acts and subordinate statutes shall be received or possible for the execution of the relevant project;

(2) The term "knowledge industry" in subparagraph 11 of Article 2 of the Act means any industry that creates high-value knowledge services through creative mental activities, which falls under any of the following subparagraphs:

1. Natural science research and development business;

2. Research and development business of a research institute under Article 25 of the Higher Education Act;

3. Research and development business of institutions or organizations under each subparagraph of Article 7 (1) of the Technology Development Promotion Act (excluding universities and colleges under Article 7 (1) 4 of the same Act);

4. Construction technology and engineering services.

Article 36-4 (Occupancy of Apartment-Type Factory)

(1) "Projects prescribed by Presidential Decree" in Article 28-5 (1) 1 of the Act means the following projects:

1. Deleted.

2. The knowledge industry and the information and communications industry referred to in Article 6 (2) and (3);

3. Deleted.

4. Deleted.

5. Other projects that the head of a Si/Gun/Gu or a management agency deems necessary to occupy apartment-type factories for the grouping of specific industries and the development of regional economy.

(c) Fact of recognition;

(1) On January 26, 2007, the Plaintiff leased Nos. 106 and 107 underground to Nonparty 1 Co., Ltd., and on March 27, 2007, at the time of the Defendant’s on-site investigation, Nonparty 1 Co., Ltd. used it as a sales office. As of December 15, 2008, Nonparty 2 Co., Ltd. used it as a sales office, and Nonparty 1 Co., Ltd is a company operating a new house construction business, general building business, civil engineering business, electricity, telecommunications and fire fighting business, real estate investment advisory development business, real estate assets operation, and real estate sales business.

B. On May 8, 2006, the Plaintiff’s wife registered the household retail business under the name of the household with the location of the instant building as the location of the place of business. The Plaintiff’s wife kept the household of the said household in the above heading room from 108 to 110. On March 27, 2007, at the time of the Defendant’s on-site investigation, the floor of the above heading room is constructed with timber, and the arrangement and lighting facilities of the household take the form of the household exhibition or sales outlet.

Article 22(1) of the Civil Act provides that “The use of ○○ Parking Lot is free of charge for three hours,” and “the use of ○○ Parking Lot is free of charge,” and “the use of ○○○ Parking Lot is arranged for restaurant business” on March 27, 2007. In addition, “the use of ○○○ Parking Lot” is operated by Nonparty 6 in the name of “○○○○○○” on the ground of the instant building.

x) On April 20, 2006, the Plaintiff leased Nonparty 3 for the purpose of a cafeteria with respect to 112 underground and 115 underground living facilities, which are neighborhood living facilities. As Nonparty 3 continued to operate the restaurant in the name of “Cheongwon cafeteria” in the underground 112, etc., Nonparty 3 filed a lawsuit against Nonparty 3 seeking the name of the building, etc. on July 27, 2007, by filing a favorable judgment against the Suwon District Court 2006Kadan58690, the said judgment became final and conclusive around that time.

(v) on October 30, 2006, the Plaintiff leased to Nonparty 4 with respect to the ground 201 through 205 on the ground and the ground 215 through 218 on the apartment-type factory. On October 2, 2006, Nonparty 4, with the trade name, “the 201 room or 204 room” as “the place of business,” has registered the business to operate the sports equipment wholesale and retail and the health club operating business on February 13, 2007, with the trade name, “the 201 room or 204 room” as “the 201 room or 215 to 218.

[Basis] Evidence Nos. 1-1, 2, 2-1, 2-2, 3-1, 2, 4, 5, 6-1, 7-2, 3-1, 2, 4, 5, 7-1, 3-2, 4, 5, 6-1, 6-2, 6-1, 8, 5-2, 8, 9-2, 9-2, and 9-2, and the purport of the whole pleadings

D. Determination

(1) First, we examine the provisions of heading 106 and 107 below.

In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws shall be interpreted in accordance with the text of the law, barring any special circumstance, and it shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fair taxation to strictly interpret that the provision is clearly preferential in terms of the requirements for tax exemption or exemption (see Supreme Court Decision 2002Du9537, Jan. 24, 2003).

In light of the purport of Article 21(1) of the Ordinance that an exemption from acquisition tax, etc. on real estate acquired to build an apartment-type factory shall be collected within five years from the date of issuance of approval for use of the building under paragraph (2), and that an exemption from acquisition tax, etc. shall be collected in cases of sale in lots or lease for purposes other than the relevant business or venture business, and that an exception under Article 21(1)3 of the Industrial Cluster Development and Factory Establishment Act is exempted from acquisition tax, etc. only to a "small and medium enterprise operator operating a business or venture business" in cases where occupancy in an apartment-type factory is exceptionally permitted pursuant to Article 28-5(1)1 and 2 of the Industrial Cluster Development and Factory Establishment Act. In light of the purport of Article 21(2) of the Ordinance, "cases of sale in lots or lease for purposes other than the relevant business" means a factory defined in subparagraph 1 of

In addition, even if a facility that intends to engage in construction technology and engineering services pursuant to Article 28-5 (1) 1 of the Industrial Cluster Development and Factory Establishment Act and Article 6 (2) 4 of the Enforcement Decree of the same Act and Article 36-4 (1) 2 of the Enforcement Decree of the same Act is permitted to move into an apartment-type factory, there is no evidence to acknowledge that the non-party 1 engaged in construction technology and engineering services of the non-party 1 corporation. Rather, as seen earlier, as seen earlier, the non-party 1 corporation registered its business as a sales office of the non-party 1 corporation, such as new construction and sale of housing, etc., and real estate investment advisory development, real estate asset management, real estate sales, etc., and each of the above offices was used as a sales office of the non-party 1 corporation at the time the defendant went into an on-site investigation. Thus, it is difficult to view that the plaintiff's allegation in this part is without merit.

According to the health stand, and the above facts of recognition, the plaintiff's wife operated the furniture exhibition room or the furniture sales room at the above heading room. It is reasonable to view that the plaintiff's wife had the plaintiff's above heading room used at least the above heading room free of charge. It is reasonable to view that the purpose of exceptionally allowing the exemption of acquisition tax, etc. of apartment-type factories in municipal ordinances is to improve the business environment of small and medium enterprises, etc. by promoting the establishment of apartment-type factories. Thus, even if the apartment-type factory is used for any other purpose, it is reasonable to view that it falls under "the case of sale in lots or lease for any purpose other than the pertinent business" under Article 21 (2) of the Ordinance.

Article 111 of the Civil Code provides that the above ground 111 shall also be leased to the proprietor of a restaurant in the first floor, in light of the fact that the above ground 111 is a restaurant and the name of the restaurant in the first floor and the free parking notice showing the trade name of the restaurant in the business and the above restaurant are attached.

Then, there is no evidence to acknowledge that the Plaintiff leased the above 112 as a kimchi manufacturing factory, and according to the Gap evidence No. 4, it is recognized that the above 112 was leased for the purpose of a cafeteria, so it is difficult to view it as a case of sale in lots and lease as a factory.

(v) with respect to subparagraphs 215 to 218 above ground, the lessee of the above heading room has entered into a lease agreement with the Plaintiff, and the operator of the sports facility operation business in the Do, retail and health club quota, and thereafter has been used for the purpose of sports facility, it is difficult to deem that the Plaintiff leased the above heading room for the purpose of the factory.

⑹ 소결론

Therefore, the acquisition tax, etc. exempted by municipal ordinances shall be collected as a penalty on each of the above 11 rooms because they are leased for any purpose other than a factory. Therefore, the disposition of this case on the premise thereof is lawful.

3. Conclusion

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

Judges Jeong Young-hun (Presiding Justice)