[1] Criteria for determining whether a non-profit entrepreneur under Article 184 subparagraph 1 of the former Local Tax Act and Article 234-12 subparagraph 2 of the former Local Tax Act directly uses the real estate for business or for profit-making business

[2] Whether the real estate acquired by a school foundation for the purpose of using it as welfare facilities for students and school personnel may be deemed to be used for profit-making business where it receives money under the pretext of contract bond, welfare scholarship, rent, etc. by entrusting or leasing it to a third party (negative)

[3] In a case where a non-profit entrepreneur uses real estate or land directly used for the business to supply goods or services by entrusting or leasing it to a third party, etc., whether it can be viewed as a case where the non-profit entrepreneur allows the third party to use the relevant real estate or land for a fee (negative with qualification) and the criteria for its determination

[1] Whether a non-profit entrepreneur under Article 184 subparagraph 1 and Article 234-12 subparagraph 2 of the former Local Tax Act (amended by Act No. 6312 of Dec. 29, 2000 and by Act No. 7332 of Jan. 5, 2005) directly uses real estate for business or uses it for profit-making business should be objectively determined based on the actual use relation of the non-profit entrepreneur in consideration of the purpose of business and acquisition.

[2] A real estate acquired by a school foundation for the purpose of using it as a welfare facility for students and school personnel shall not be deemed to have been used for profit-making business even if it was received money under the pretext of contract deposit, welfare scholarship, rent, etc. by entrusting or leasing it to

[3] Article 184 subparagraph 1 and subparagraph 2 of Article 234-12 of the former Local Tax Act (amended by Act No. 6312 of Dec. 29, 2000 and Article 7332 of Jan. 5, 2005) refer to the case where a nonprofit entrepreneur uses the real estate or land directly used for the nonprofit business or uses the land for a fee, or where the land is used for a fee, the user pays the price for the use of the real estate or the land. Thus, since it is necessary for a nonprofit entrepreneur to provide the goods or the service for a fee for the use of the goods or the service, if it is a place where the goods or the service is supplied for a fee for the use of the goods or the service, and if the money received from the user of the goods or the service is merely for a fee for the goods or the service, it shall not be deemed that the supply of the goods or the service is a case where the nonprofit entrepreneur directly or indirectly supplied the goods or the service to a third party, and it shall be determined whether the price for the goods or the service is directly supplied to the goods or the service.

[1] Article 184 subparag. 1 (see current Article 186 subparag. 1), Article 234-12 subparag. 2 (see current Article 186 subparag. 1) of the former Local Tax Act (Amended by Act No. 7332, Jan. 5, 2005) / [2] Article 184 subparag. 1 (see current Article 186 subparag. 1) of the former Local Tax Act (Amended by Act No. 7332, Jan. 5, 2005); Article 234-12 subparag. 2 (see current Article 186 subparag. 1) of the former Local Tax Act / [3] Article 184 subparag. 1 (see current Article 186 subparag. 1) of the former Local Tax Act (Amended by Act No. 732, Jan. 5, 2005); Article 234-12 subparag. 2 (see current Article 186 subparag. 1) of the former Local Tax Act

[1] [2] Supreme Court Decision 2004Du9265 Decided January 13, 2006 / [1] Supreme Court Decision 95Nu13104 Decided January 26, 1996 (Gong1996Sang, 825), Supreme Court Decision 2000Du3238 Decided April 26, 2002 (Gong2002Sang, 1278) / [3] Supreme Court Decision 92Nu1505 Decided September 14, 1993 (Gong193Ha, 2822), Supreme Court Decision 96Nu14845 Decided February 28, 197, Supreme Court Decision 97Nu87311 Decided January 23, 1998

School Foundation ○○ University (Attorney Kim Ho-ho, Counsel for the defendant-appellant)

Head of Yeongdeungpo-gu

Seoul High Court Decision 2004Nu21861 delivered on July 28, 2005

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

The grounds of appeal are examined.

1. Whether a non-profit entrepreneur prescribed in Article 184 subparagraph 1 and subparagraph 2 of Article 234-12 of the former Local Tax Act (amended by Act No. 6312 of Dec. 29, 2000 and by Act No. 7332 of Jan. 5, 2005; hereinafter referred to as the "Act") directly uses real estate or uses it for profit-making business shall be objectively determined based on the actual use relation in consideration of the purpose of business and acquisition by the pertinent non-profit entrepreneur (see Supreme Court Decisions 95Nu13104, Jan. 26, 1996; 2004Du9265, Jan. 13, 2006, etc.).

In light of the records and the court below's circumstances, among the instant buildings on the ground of Suwon-si ( Address omitted), the part of the facilities used by the plaintiff as a faculty member, a store, a book store, a photographer, a post office, a bank, etc. among the instant buildings on the surface of Suwon-si (hereinafter "the dispute part") was entrusted to or leased to 20 and managed and operated by the 20 enterprises, including Samsung C&T Co., Ltd., the location of the controversial part, the location of the main part, customers, selling items, the selling price and operating status, and the expenditure of the funds received from the above entrusted manager or lessee, etc., the key part of the judgment below is that the Plaintiff is used for the educational business conducted by the plaintiff as facilities for the welfare of the students and the staff of ○○ University natural Science Campus operated by the plaintiff for the welfare of the students and the staff, even if the plaintiff received the funds under the name of contract deposit, welfare scholarship and rent from the entrusted manager or the lessee, and there is no other error in the misapprehension of facts as alleged otherwise in the grounds for appeal.

2. According to subparagraph 1 of Article 184 and subparagraph 2 of Article 234-12 of the Act, the property or aggregate land tax shall not be imposed on the real estate or land used directly by a nonprofit entrepreneur as provided in each of the above provisions, but the property or aggregate land tax shall be imposed on the real estate or the land used for a fee if such real estate is used for a fee or at a charge. Here, the term "in a case where such real estate is used for a fee or at a charge" means that the user pays the price for the use of such real estate or the land (see Supreme Court Decisions 96Nu14845 delivered on February 28, 1997, 97Nu148731 delivered on January 23, 198, etc.). It is necessary for a nonprofit entrepreneur to supply the goods or services to a nonprofit entrepreneur as separate goods or services for carrying out its own business, and it is only necessary for a nonprofit entrepreneur to use such goods or services, and it can not be determined whether such goods or services are directly supplied to a third entrepreneur or a rent for the goods or services.

According to the records, the defendant asserts that the plaintiff is subject to taxation of property tax, aggregate land tax, etc. since the plaintiff entrusted or leased the key part as above and used the key part for the payment of a monthly amount as well as the contract bond, etc. in addition to the contract bond, since he received the payment of a certain amount each month for the welfare scholarship, etc.

Therefore, the court below should have judged the propriety of each of the dispositions of this case after further examining whether each of the above amounts was paid for the use of the main part of the issue or the extent of indirect collection of part of the service cost even though the plaintiff used the main part of the case directly for the educational business that the plaintiff performed. However, the court below erred in the omission of judgment which affected the conclusion of the judgment, and the ground of appeal pointing this out has merit.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)