[1] Whether the land excluded from the area of the stopping place due to the approval for the alteration of the scale of the automobile depots constitutes the "land for the stop place" under Article 18 (3) 3 (e) of the former Enforcement Rule of the Corporate Tax Act concerning the scope of non-business real estate (negative)

[2] [1] Whether a corporation's land under Article 18 (4) 3 of the former Enforcement Rule of the Corporate Tax Act constitutes "real estate not falling under real estate for business purposes due to temporary closure, permanent closure, or transfer of all or part of its business (affirmative)

[1] In light of the purport and contents of each provision on real estate for non-business use of a corporation, the land used by a person who has obtained a license under the provisions of the Automobile Rental Act for a stop place shall not be deemed excluded from non-business use real estate under Article 18 (3) 3 (e) of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1968 of March 12, 1994) without any restriction. Only the land within the scope of a stop place prescribed in the license or authorization shall be excluded from non-business real estate under the above Enforcement Rule, which is the land for a stop place within the scope of a stop place prescribed in the above Enforcement Rule, and the land excluded from the stop area due to the change of the scale is not the land for a stop place under the above provision of the Enforcement Rule.

[2] Article 18 (4) of the former Enforcement Rule of the Corporate Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 1968 of March 12, 1994) provides that real estate falling under any of the following subparagraphs shall not be deemed real estate for non-business use, notwithstanding the provisions of paragraph (3), and subparagraph 3 of Article 18 provides that "real estate for which two years have not passed since the date of suspension, closure, or transfer of business due to the suspension, closure, or transfer of all or part of the business, which is not real estate for business use, shall not be deemed real estate for non-business use," so long as interpreting Article 18 (3) 3 (e) of the Enforcement Rule as Paragraph 1 of the same Article 18 of the Enforcement Rule as Paragraph 3 of the same Article 18 of the former Enforcement Rule, it is included in the area of the stopping stipulated in the initial license, and the change of the scale of the land excluded from the area of the stopping by the authorization for change of scale shall not be deemed real estate

[1] Article 18-3(1) of the Corporate Tax Act; Article 43-2(1) and (3) of the Enforcement Decree of the Corporate Tax Act; Article 43-2(5) of the former Enforcement Decree of the Corporate Tax Act (Amended by Presidential Decree No. 13195, Dec. 31, 1990); Article 18(3)3(e) of the former Enforcement Rule of the Corporate Tax Act (Amended by Ordinance of the Ministry of Finance and Economy No. 1818, Apr. 4, 1990); Article 18(3)3(e) of the former Enforcement Rule of the Corporate Tax Act (Amended by Ordinance of the Ministry of Finance and Economy No. 1968, Mar. 12, 1994); Article 18(3)3(e) of the former Enforcement Rule of the Corporate Tax Act / [2] Article 18-3(1) of the Corporate Tax Act; Article 43-2(1) and (3) of the Enforcement Rule of the Corporate Tax Act (Amended by Ordinance of the Ministry of the Ministry of Finance, Mar. 1968)

[1] Supreme Court Decision 91Nu11643 delivered on October 27, 1992 (Gong1992, 3328)

Young Chang Industrial Co., Ltd. (Attorney Kim Young-ok, Counsel for defendant-appellee)

The director of the Southern Incheon District Office

Seoul High Court Decision 95Gu23233 delivered on January 29, 1997

All appeals are dismissed. The costs of appeal are assessed against each appellant.

1. We examine the Plaintiff’s grounds of appeal.

Article 18-3 (1) of the Corporate Tax Act (amended by Act No. 4282 of Dec. 31, 1990) provides that a domestic corporation holding real estate for non-business purposes shall not include the amount prescribed by the Presidential Decree among interest on loans paid for each business year in deductible expenses for the calculation of income amount of each business year. Article 43-2 (5) of the Enforcement Decree of the Corporate Tax Act (amended by the Presidential Decree No. 13195 of Dec. 31, 1990) and paragraph (1) of the same Article (amended by the Presidential Decree No. 1990 of Dec. 31, 1990) provides that the former Enforcement Rule No. 9 of the Corporate Tax Act (amended by the Ordinance No. 1990 of Apr. 4, 1990) provides that the former Enforcement Rule No. 9 of the Corporate Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 196 of Apr. 16, 1994>

In light of the purport and contents of the above provisions, the land used by a person who has obtained a license under the provisions of the Automobile Rental Act for a stopping place shall not be deemed to be excluded from non-business real estate as it falls under the land for a stopping place under Article 18 (3) 3 (e) of the above Enforcement Rule without any restriction, and only the land within the scope of a stopping place prescribed in the license or authorization shall be excluded from non-business real estate.

In the same purport, the court below is just in holding that the land of this case, which was included in the original license area and excluded from the size of the stop area by the approval for change of size, does not constitute the land for the stop place as prescribed by the above Enforcement Rule, and there is no ground of appeal on this point.

On the other hand, the remaining grounds of appeal as to whether to use the land of this case are additionally determined by the court below, and as long as the above determination by the court below is just, it does not affect the result of the judgment below. Thus, the grounds of appeal that criticizes the above additional determination by

2. We examine the defendant's grounds of appeal.

Article 18 (4) of the above Enforcement Rule provides that real estate falling under any of the following subparagraphs shall not be deemed real estate for non-business use, notwithstanding the provisions of paragraph (3), and subparagraph 3 of Article 18 provides that "real estate for which two years have not elapsed since the date of suspension, closure, or transfer of all or part of business, which has not come to fall under real estate for business use as a result of suspension, closure, or transfer of business." Thus, as long as the land for the bus stops under Article 18 (3) 3 (e) of the above Enforcement Rule is interpreted as above, it is reasonable that the court below determined that the land of this case cannot be deemed as real estate for non-business use for two years from the date of change of scale by applying Article 18 (4) 3 of the above Enforcement Rule, since it is included in the area of the bus stops prescribed in the initial license as the land of this case and it is excluded from the area of the bus stops due to the change of scale by the approval of the change

In addition, Article 18 (4) of the above Enforcement Rule does not apply to the case where the land of this case was used for lease for the above two-year period as alleged by the defendant. The grounds of appeal on this point are not acceptable.

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

Justices Chocheon-sung (Presiding Justice)