2013Guhap637 Revocation of Disposition of Imposing development charges

A

Head of Seo-gu Daejeon Metropolitan City

November 20, 2013

December 18, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of development charges of KRW 103,032,930 against the Plaintiff on November 11, 2012 shall be revoked.

1. Details of the disposition;

A. On September 21, 2009, the Plaintiff obtained a building permit for storage and treatment facilities of hazardous substances (LPG charging stations) on the Seo-gu, Seo-gu, C, D, E, and F ground. Upon obtaining a building permit for Class II neighborhood living facilities (general restaurants) on June 13, 201, the Plaintiff obtained a building permit for Class II neighborhood living facilities (general restaurants) on G, B, and D ground on June 13, 201, and after completing each completion on July 31, 201 and July 27, 2012 (hereinafter “instant development project”).

B. On September 6, 2012, the Plaintiff submitted to the Defendant a statement on the calculation of development costs (hereinafter referred to as “statement of development costs of this case”) that the development costs of KRW 726,104,464 were required for the instant development project.

C. On November 16, 2012, the Defendant reduced KRW 389,831,428 of the development costs claimed by the Plaintiff, and imposed development charges of KRW 103,032,930 on the Plaintiff according to the following calculation details (hereinafter “instant disposition”).

1,201,538,248 won

(2) Land price as of the starting point of imposition: 390,351,413 won

In normal increase: 62,782,062 won

Development costs: 336,273,036 won (=726,104,464 won - 389,831,428 won)

Development gains: 412,131,737 won [=1,201,538,248 won (date of completion) - 390,351,413 won (date of commencement)

- 62,782,062 ( normal increase in land prices) - Development costs (336,273,036))

Development charges: 412,131,737 won (development gains) X 25% = 103,032,930 won

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, 4, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Whether the disposition of this case is unlawful

A. Summary of the plaintiff's assertion

Since the Defendant only notifies the Plaintiff of the instant disposition without a prior explanation as to what criteria the disposition was taken, the instant disposition is in violation of Article 14(2) of the Restitution of Development Gains Act (hereinafter “Development Gains Refund Act”). Moreover, as the Defendant calculated development charges without clear standards or grounds, the instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The details of development costs under the statement of development costs of this case submitted by the Plaintiff to the Defendant are as follows.

A person shall be appointed.

2) With respect to "other expenses" 437,410,685 won under the above development costs specification, specific disbursement details presented by the Plaintiff are as follows:

A person shall be appointed.

3) In particular, with respect to the above 'business compensation expenses' item 361,034,825 won among the above 'other expenses', the Plaintiff asserted that the development expenses should be deducted in calculating the development charges under the development project of this case from the total amount of 564,000,000 won paid to H Co., Ltd., and the Defendant demanded the Plaintiff to submit materials related to the payment of the business compensation amount to the Plaintiff several times. However, the Plaintiff submitted a sales contract (Ga No. 2, 928,00,000,000 won and KRW 564,000,000,000 won and KRW 564,000,000,000 won and KRW 21,000,000,000,000 won and KRW 364,000,000,000 won and KRW 564,000,000.

4) In September 2012, the Defendant: (a) requested the Korea Enterprise and Management Research Institute, an incorporated association, to verify and calculate development costs pursuant to Article 12(1)1 through 3, 3, and 5 of the Enforcement Decree of the Development Gains Refund Act in order to verify the propriety of development costs presented by the Plaintiff; and (b) to calculate construction costs, design costs, etc. among the development costs; (c) the Korea Enterprise and Management Research Institute, an incorporated association, after examining the development costs claimed by the Plaintiff from September 21, 2012 to September 26, 2012, submitted to the Defendant a cost investigation report on the same content as the following table.

5) In order to calculate development charges, the Defendant selected a comparative standard site similar to those of the Plaintiff pursuant to Article 8(1) of the Enforcement Rule of the Development Gains Refund Act, and calculated the land price as of the starting point and the end point of imposition, and had the relevant department conduct on-site inspection of the completion details, etc. Based on the result of the aforementioned investigation, the Defendant, on October 29, 2012, reduced both net construction costs, general management costs, and research and design costs as indicated below, and recognized only KRW 336,273,036,036, which was claimed by the Plaintiff as development costs, such as reducing the total business compensation costs of the Plaintiff’s assertion, in particular, reduced the development costs of KRW 726,104,464, which was claimed by the Plaintiff.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 1 through 4, Eul evidence 7 through 9, 14, 15 (including each number), the purport of the whole pleadings

D. Determination

1) As to the assertion of procedural defect

In order to determine and impose development charges, Article 14 (2) of the Development Gains Refund Act provides that the person liable to pay shall be notified of the standards for imposition and development charges in advance, as prescribed by Presidential Decree.

However, in addition to the above evidence Eul evidence No. 6, the defendant requested the plaintiff to submit evidentiary documents related to the calculation of the business compensation amount several times, but the plaintiff could not submit the grounds for calculation. The defendant can recognize the fact that on October 29, 2012, the defendant sent the plaintiff a notice of scheduled development charges stating the amount of development charges, the standard amount calculated thereof, calculation method, etc., to the plaintiff. Thus, if there are circumstances, it is reasonable to deem that the defendant notified the plaintiff prior to the disposition in this case, prior to the disposition in this case, it is reasonable to deem that the defendant given a prior notice under Article 14 (2) of the Development Gains Refund Act.

2) As to the unlawful argument regarding the calculation of development charges

Comprehensively taking into account the following circumstances, i.e., (i) the Defendant selected a standard for comparison with the land for the development project in this case as prescribed by the Development Gains Refund Act and relevant statutes; (ii) based on the site verification, based on the characteristics of the land, the average price fluctuation rate, etc., calculated the land price and the place of termination; (iii) the Defendant requested the service provider for the assessment of development costs to verify each development costs indicated in the specifications submitted by the Plaintiff; (iv) the calculation of development costs based on the completion details of the relevant departments and the results of on-site inspection; (iii) the Defendant requested the Plaintiff to provide data that can recognize the business compensation expenses; (iv) the Plaintiff failed to submit other data than the sales contract and the receipt of the passbook; (iii) the Korea Business Research Institute, which is an incorporated association by the Defendant, also presented the Plaintiff’s opinion that recognizes all the Plaintiff’s business compensation expenses; (iii) based on the research institute’s opinion on the development costs calculated based on the objective calculation of the development costs, it is difficult to view the Plaintiff’s opinion that it was unlawful.

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 Kim Jong-ri

Judge Lee Dong-young

Judges Cho Jae-ra

(i)the value calculated in accordance with the comparison table of reference land most similar to the land to be imposed at the time of termination of imposition, calculated by adding the increases in normal land prices from January 1 of the year concerned to the end of imposition;

(b) The aggregate value of the increases in normal land prices from the base date of the officially assessed individual land price of the land subject to imposition to the starting date of imposition;

3) In relation to the instant development project, the Plaintiff paid H Co., Ltd. KRW 564,00,000 as compensation for the discontinuance of the business of the corporation. Among them, KRW 361,034,825 should be deducted from development costs in calculating the development charges under the instant development project, and the details of the calculation are as follows.

∵ 개발비용으로 공제되어야 할 영업보상비 361,034,825원 = 원고가 H 주식회사에 지급한 법인폐업에 대한 보상금 564,000,000원 X C, D토지 중 충전소 필지로 허가된 토지 면적 386㎡(C토지 343m² + D토지 중 43㎡) / C, D토지 전체면적 603㎡(C토지 343㎡ + D토지 260㎡)

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.