Whether related land constitutes non-business real estate

The case holding that it was erroneous that the land of this case was a non-business real estate since the date when the change of the scale of the place of business was obtained, although the period of deeming that the construction was partially closed by the completion of the construction to exclude the land from the land for non-business use after obtaining permission from the Mayor.

The contents of the decision shall be the same as attached.

1. On May 20, 1994, the part of corporate tax as stated in the separate disposition No. 1 against the Plaintiff and the part exceeding the amount stated in the separate annexed tax item No. 1 among the defense detailed and disposition that the Defendant rendered against the Plaintiff is revoked, respectively. 2. The remaining claims of the Plaintiff are dismissed on May 20, 1994.

1. Details of the instant taxation disposition

The following facts may be acknowledged either in dispute between the parties or in relation to Gap evidence 1-5, Gap evidence 1-2, Eul evidence 3-1, 2, Eul evidence 1-1 through 9, Eul evidence 2-1 through 8, Eul evidence 3-1 through 10, Eul evidence 4-1 through 8, Eul evidence 4-1 through 8, and Eul evidence 5-1 through 8, and there is no counter-proof.

가. 화물자동차터미널사업, 석유류판매업, 자동차운송알선업 등을 사업목적으로 하는 원고가 1983. 2. 16. ㅇㅇ직할시장으로부터 사업장 소재지를 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 587의 45, 46, 48로, 사업장 면적을 69,076㎡로, 사업의 종류를 트럭정류장으로 하는 자동차정류장사업면허를 받아 화물터미널사업을 해오던 중 1989. 8. 5. 사업장면적을 37,072㎡로 변경하는 자동차정류장규모변경인가를 받아 그 사업을 계속하여 오고 있다.

B. On May 20, 1994, the Defendant considered the Plaintiff as non-business real estate the amount of 17,865 square meters (see attached Form 4; hereinafter the same shall apply) with the exception of 9,895 square meters and 4,244 square meters used as roads, etc. among the land of 32,004 square meters of the place of business, which has been reduced with the above scale change authorization, as non-business real estate, and added the loan interest and the tax amount for each business year calculated as prescribed by the Enforcement Decree of the Corporate Tax Act in relation to the Plaintiff’s possession of the instant land, as non-business real estate. Furthermore, the Defendant issued a revised and notified the corporate tax amount and the defense tax amount to be additionally paid as stated in the tax disposition column of attached Table 1 (hereinafter the taxation disposition of this case).

C. In revising the corporate tax amount of this case, the details of non-deductible expenses are: (1) 25,61,925, (2) interest paid for loans related to non-business real estate for the business year 1989; (3) 25,661,925,925, and (2) interest paid for loans related to non-business real estate; (18,91,210 won of the aggregate land tax of the above real estate; and (3) 9,780,529, 1991, interest paid for loans related to non-business real estate; (4) 126,02,735; (1) 3,428,580 won of the aggregate land tax related to the above real estate; (3) 3,205,50 won of the interest paid for the loans related to non-business real estate; (4) 7,51,411,084 won of the amount of loans related to non-business real estate; and (4) 97) 9,505 won of the interest paid for nonbusiness real estate.

2. Whether the instant taxation disposition is legitimate

A. The parties' assertion

With respect to the Defendant’s assertion that the instant taxation disposition is lawful on the grounds of the above grounds of disposition and relevant laws, the Plaintiff asserted that (1) even after the Plaintiff obtained a change authorization on the size of the land used for automobile depots, the Plaintiff continued to use the instant land as the land at a designated stop, which was excluded from the authorized area, and thus, it constitutes a real estate for business purposes, and (2) even if the instant land is not a real estate for business purposes, even though it is not a real estate for business purposes, the instant taxation disposition on the premise that it constitutes non-business real estate from the time of a change authorization on the size of the land used for automobile depots, notwithstanding the fact that it cannot be deemed a real estate for two years after the partial discontinuance of business under Article 18(4)3 of the Enforcement Rule of the Corporate Tax Act, is unlawful.

Article 18-3 (1) of the former Corporate Tax Act (amended by Act No. 4282, Dec. 31, 1990) provides that among the interest on loans paid during each business year by a domestic corporation holding assets falling under any of the following subparagraphs, the amount determined by the Presidential Decree within the limit of the total amount of assets under the following subparagraphs shall not be included in the calculation of losses in calculating the income amount for each business year. The above provision was amended by Act No. 4282, Dec. 31, 1990; Article 18-3 (1) of the former Corporate Tax Act (amended by Act No. 4282, Dec. 31, 1990) provides that with respect to a domestic corporation which acquires or holds assets falling under any of the following subparagraphs, such amount shall not be included in the calculation of losses in calculating the income amount for each business year (limited to interest equivalent to the relevant asset value among loans) shall be deemed not directly related to the business year or in view of the actual use status of the relevant corporation, etc. and deemed as real estate price increase in order to acquire profits:

Article 43-2 (5) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 13195 of Dec. 31, 190) (amended by Presidential Decree No. 13195 of Dec. 31, 1990) provides that "real estate which is not directly related to the business of the corporation concerned" means real estate prescribed by Ordinance of the Ministry of Finance and Economy (hereinafter referred to as "real estate for non-business use") considering the period after the acquisition of the real estate concerned, the amount of income from the real estate concerned, the size of the building, etc., and the degree related to the business of the corporation concerned, etc. shall be considered. Article 43-2 (1) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 13195 of Dec. 31, 190) provides that Article 18-3 (1) of the Corporate Tax Act provides that "real estate falling under any of the following subparagraphs (hereinafter referred to as "real estate for non-business use") shall not be used until a certain period has elapsed:

Accordingly, Article 18(3) of the Enforcement Rule of the Corporate Tax Act provides for the criteria for determining the above non-business real estate, and Article 18(3)3 of the same Act provides for the land for parking lot, excluding the land falling under any of the following items, for non-business use. The item (e) of the same subparagraph prior to the amendment by Ordinance of the Ministry of Finance and Economy No. 1818 of April 4, 190 provides for the land for parking lot to be continuously used by the person who has obtained a license under the provisions of the Automobile Rental Act, and item (e) of the same subparagraph prior to the amendment by Ordinance of the Ministry of Finance and Economy No. 1968 of March 12, 194 provides for

On the other hand, Article 18 (4) of the Enforcement Rule of the Corporate Tax Act provides that real estate falling under any of the following subparagraphs shall not be deemed non-business real estate, and subparagraph 3 of Article 18 provides that a corporation shall not be a real estate for business purpose due to the suspension, closure, or transfer of all or part of its business, and two years have not passed since the date of such suspension, closure, or transfer.

C. Determination

(1) Facts

살피건대, 갑제3호증의 2, 갑제4호증의 1 내지 6, 갑제5호증의 1 내지 5, 갑제6호증의 1 내지 6, 갑제9호증의 1 내지 3, 갑제11호증, 갑제12호증의 1, 2, 갑제13호증, 갑제23호증의 1 내지 10, 갑제24호증의 1 내지 7, 갑제25호증의 1 내지 4, 갑제26호증의 1 내지 3, 갑제28호증, 갑제31호증 내지 갑제35호증의 각 1, 2, 3, 을제9, 10호증의 각 1, 2, 3, 을제11호증의 1 내지 4, 을제12호증의 1, 2, 을제14호증의 1 내지 5의 각 기재, 이 법원의 검증결과, 감정인 김ㅇㅇ의 측량감정결과에 변론의 전취지를 종합하면, 다음의 사실을 인정할 수 있고 달리 반증없다.

(A) On June 10, 1983, the Plaintiff obtained a license for automobile depots business ( truck stops) under Article 4 of the former Automobile Terminal Act (amended by Act No. 4434, Dec. 4, 1991; Act No. 4434, Dec. 4, 1991). The area of land at the said license was 69,07 square meters.

(나) 그런데 원고는 당시의 영업여건에 비하여 위 사업장면적이 지나치게 넓고 결손이 계속 발생하자 경영을 합리화하기 위하여 1989. 2. 10. 이사회의 결의를 거쳐 위 정류장에 대한 규모축소인가를 받아 인가면적에서 제외되는 토지를 매각하기로 하고, 같은 해 7. 5. 자 ㅇㅇ직할시장의 도시계획시설(화물자동차정류장)변경결정 및 사업시행변경허가에 따라 같은 달 27. 위 사업장규모를 37,072㎡로 변경하는 공사를 완료한 다음 같은 해 8. 5. 위 자동차정류장법 제18조 에 의하여 인천직할시장으로부터 사업장규모를 37,072㎡로 축소하는 자동차정류장규모변경인가를 받았다(별지 4 도면 참조).

(다) 원고는 1989. 8. 16. 위 규모변경인가에 따라 정류장용토지에서 제외된 토지 면적 합계 32,004㎡중 ㅇㅇ시ㅇㅇ구 ㅇㅇ동 587의 128 잡종지 5,701㎡를 소외 ㅇㅇ운수주식회사에게, 1990. 10. 10. 같은 동 587의 129 공장용지 4,193㎡를 소외 ㅇㅇ기계주식회사에게, 1993. 12. 10. 같은 동 175 잡종지 1,300㎡를 소외 대한민국에 각 양도하였고, 그밖에 도로용지로 사용하는 면적을 제외한 17,865㎡(이 사건 토지)는 여전히 보유하면서 이를 소외 주식회사 ㅇㅇ위스키, 주식회사 ㅇㅇ제강, ㅇㅇ공업사 등에 임대하여 위 임차인들이 이를 주차장 또는 화물하치장 등으로 사용하고 있다.

(b) License or authorization for automobile depots and land for non-business use;

First, Article 18 (3) 3 (e) of the Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Construction and Transportation No. 1968 of March 12, 194) provides that a person who has obtained a license or authorization under the Automobile Terminal Act shall continue to use the land for non-business purposes, regardless of whether it exceeds the area of the license or authorization, depending on the actual use conditions as alleged by the plaintiff. The above item (e) does not provide a different standard for area of land for non-business purposes, such as land for a private parking lot, land for a parking lot, land for parking lot, land for parking lot business, or land for a parking lot, etc. However, under Articles 4, 6, and 18 (1) of the said Automobile Terminal Act, it is difficult to establish a strict standard for area of land to be used for non-business purposes to prevent the Plaintiff from using the land for non-business purposes, and thus, it is difficult for the said person to arbitrarily change the area of land for non-business purposes or to temporarily use the land for non-business purposes.

Therefore, the plaintiff's assertion that the land of this case is excluded from non-business land as land for bus stops under Article 18 (3) 3 (e) of the Enforcement Rule of the Corporate Tax Act shall be no exception.

(3) Scale changes of business place and whether the business is partially discontinued

However, according to the above evidence, the defendant can recognize that the land in this case was subject to the taxation of this case by excluding related loans, interest and taxes and public charges from deductible expenses from the time when the land was excluded from the land for non-business use from the time when the change of the scale of the place of business was made. Thus, Article 18 (4) 3 of the Enforcement Rule of the Corporate Tax Act provides that the real estate which was not subject to business use real estate shall be excluded from non-business use real estate for which two years have not passed since the date of business suspension, closure, or transfer, as the corporation suspends or closes the whole or part of its business, after obtaining a license for business size of 69,076 square meters from the original place of business, and completed the construction for which the scale of the business was reduced to 37,072 square meters on July 27, 1989 with the permission for change of urban planning facility business from the head of Incheon Special Metropolitan City, Metropolitan City, and obtained the permission for change of the scale of the place of business under the Automobile Management Act.

However, Article 18 (4) 3 of the Enforcement Rule of the Corporate Tax Act is difficult to dispose of real estate not falling under the real estate for business purposes immediately due to changes in circumstances such as temporary closure or permanent closure of business, but taking measures such as non-business losses, considering it as non-business real estate, it seems that the holding corporation would have made a grace period to dispose of such real estate separately or to use it for other business purposes, taking into account the harsh consideration of the fact that there was a change in the scale of business place, and thus, it is harsh to impose sanctions, such as non-business losses, by deeming it as non-business real estate, without the grace period to dispose of the land excluded from the area of the business place, on the ground that there was a change in the scale of the business place, the above legal principle is equally applied in that it is harsh to impose sanctions, such as non-business real estate. Meanwhile, in light of the fact that the defendant

따라서 이 사건 토지는 원고가 ㅇㅇ직할시장으로부터 허가를 받아 이를 정류장용토지에서 제외하는 공사를 완료함으로써 일부 페업하였다고 볼 위 1989. 7. 27. 부터 2년간은 비업무용부동산이라 할 수 없을 것임에도 사업장규모변경인가를 받은 날부터 바로 이 사건 토지가 비업무용부동산에 해당하게 되었다고 본 것은 잘못이라 할 것이므로, 1989사업연도에 대하여는 경정한 추가세액이 전부 위법하다 할 것이고, 1990사업연도에 대하여는 비업무용부동산 관련 차입금 지급이자 금552,585,371원, 위 부동산관련종합토지세 금18,911,210원으로 인한 부분이, 1991사업연도에 대하여는 비업무용부동산 관련 차입금 지급이자 금126,022,735원, 위 부동산관련 종합토지세 금13,428,580원 중1991. 1. 1. 부터 1991. 7. 27. 까지의 기간에 해당하는 부분이 각 위법하나, 1992사업연도 및 1993사업연도에 대한 부과세액은 적법하다고 할 것이다.

3. The calculation of justifiable taxes; and

Therefore, in calculating the reasonable tax amount to be imposed on the Plaintiff on the basis of the above recognized facts and evidence No. 1-9, evidence No. 1-2-2-3, evidence No. 3-1 through 10, evidence No. 4-1 through 8, evidence No. 5-1 through 8, and evidence No. 5-1 through 8, it is obvious that the amount of tax to be imposed on the Plaintiff is as shown in the separate sheet No. 1 (the detailed calculation of the business year 1990 and the business year No. 1991 are as shown in the separate sheet No. 2 and No. 3). Therefore, the part in excess of the above amount of the Defendant’s taxation should be revoked by unlawful means.

4. Conclusion

Therefore, the plaintiff's claim is reasonable within the above scope of recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

January 29, 1997