Scope of the registration of real estate under Article 138 (1) 3 of the Local Tax Act

Real estate registration as a registration subject to heavy taxation under Article 138 (1) 3 of the Local Tax Act refers to the general real estate registration except a factory under Article 138 (1) 4 of the Local Tax Act in light of the provisions of subparagraph 4 of the same paragraph.

Article 138 of the Local Tax Act

Supreme Court Decision 81Nu33 delivered on February 28, 1984

Attorney Lee Jong-ho et al., Counsel for the defendant-appellant

Busan City Mayor (Attorney Lee Jae-ho et al., Counsel for defendant-appellant)

Seoul High Court Decision 83Gu552 delivered on March 29, 1984

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The defendant's attorney's grounds of appeal are examined.

With respect to No. 1:

1. Registration following the establishment of a juristic person in a large city and the transfer of its head office or branch offices into a large city; 2. Registration of real estate following the establishment of a juristic person in a large city and the relocation of its head office or branch offices into a large city; and 4. Registration of real estate following the establishment, establishment, establishment, and relocation of a factory in a large city; 4. Registration of real estate following the establishment, establishment, and relocation of a factory in a large city; the tax rate shall be five times the relevant tax rate prescribed in Articles 131 and 137; and the scope of and applicable standards for heavy taxation under Article 102 of the Enforcement Decree of the Local Tax Act shall be prescribed by the Presidential Decree. Article 102 of the same Act provides for the scope of and applicable standards for heavy taxation of juristic persons in the large city, other than the provisions of paragraphs (1) through (4) of the same Article, the scope of and applicable standards for heavy taxation of juristic persons in a large city and other necessary matters under Article 57 through 47 of the Enforcement Decree of the same Act shall apply mutatis mutandis.

However, Article 47-2 of the above Enforcement Rule of the acquisition tax applicable mutatis mutandis to registration tax provides that "the scope of a factory which is exempt or exempted from acquisition tax pursuant to Article 110-2 (2) and Article 110-3 (3) 5 of the Act and a factory subject to heavy taxation pursuant to Article 112 (4) of the Act shall be limited to a factory of a certain scale or more, and the scope of a factory which uses not less than 100 square meters or not less than 16 employees (including a representative and an employee frequently employed) of the total floor area of the factory building (in case there is no machine or storage facility, the facility area thereof) or not less than 16 employees (including a representative and an employee as provided in the attached Table 2 of the Enforcement Decree of the Industrial Placement Act)," and in light of its language and content and type of business, this provision shall be limited to a factory of which registration tax (acquisition tax) is non-taxable, reduced or exempted, or heavy taxation, and it is not erroneous in the misapprehension of legal principles as to the same extent.

With respect to points 2 to 5:

Article 138 (1) 3 of the Local Tax Act provides for real estate registration following the establishment of a corporation in a large city and the establishment of a branch office or a branch office in a large city and the relocation of a corporation into a main office, a branch office or a branch office in a large city. However, Article 138 (1) 4 of the same Act provides for real estate registration following the establishment, establishment, and relocation of a factory in a large city. In addition, in consideration of such provision, the above real estate registration under subparagraph 3 of the same Article must be replaced by the general real estate registration except for a factory under subparagraph 4 of the same Article (see Supreme Court Decision 81Nu333, Feb. 28, 1984). Accordingly, the above subparagraph 3 cannot be applied to the registration of a factory in this case (see Supreme Court Decision 81Nu333, Feb. 28, 1984). It is justifiable in the judgment of the court below to that effect, and there is no violation of law such as the application of the theory of lawsuit. It is no matter of law.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices O Sung-sung(Presiding Justice)