[Case Number] High Court Decision 2014No0240 (No. 11, 2014)

[C] Acquisition [Types of Determination]

[Judgment] The claimant corporation argues that the real estate acquired at issue and did not directly use the real estate for its proper purpose business within two years, and that the reason was that the company did not start construction work due to the financial situation caused by the economic emercation, but this is due to the internal circumstances of the claimant corporation, not for the reasons such as prohibition of and restriction on the law and the reasons attributable to the administrative agency.

[Related Acts and subordinate statutes] Article 120 (3) of the Restriction of Special Taxation Act

The appeal is dismissed.

1. Summary of disposition;

A. On April 13, 2007, the applicant corporation was a corporation established with the headquarters of the headquarters for landscaping planning, design and supervision services, etc. as a corporation established for the purpose of business, and acquired the headquarters on January 10, 201 (hereinafter “contest land”), and was exempted from acquisition tax, etc. from the disposition authority on the grounds that the land at issue constitutes business property acquired by the small and medium start-up venture enterprise under Article 120(3) of the Restriction of Special Taxation Act (wholly amended by Act No. 11614, Jan. 1, 2013; hereinafter the same shall apply) within four years after its establishment.

B. On May 24, 2013, the disposition agency confirmed that the land at issue is not used directly for the pertinent business without justifiable grounds within two years from the date of acquisition and imposed an OO (including additional taxes) calculated by applying the heavy taxation rate under Article 13(2)1 of the Local Tax Act (including real estate acquired within five years from the date of establishment of a large city) on the applicant corporation on October 10, 2013.

C. The applicant filed an appeal on November 27, 2013.

2. Opinion of the requesting corporation and the disposition agency;

A. The claimant corporation's assertion

After acquiring the land at issue as a corporation with landscape planning and design as a corporation for the purpose of new construction of the office, the applicant corporation has contracted and progress the construction design and supervision to the construction design experts, but the construction was selected by obtaining permission for modification of the construction plan and approval for the construction project plan more than 1 and 2 times, but the construction was modified due to the need for reduction of construction cost and maintenance. The applicant applied for extension of construction cost, which is prepared to start the construction work within the extended period from the agency

After the acquisition of the disputed land, the selection of construction works and the commencement of construction works have been promoted before the commencement of the project, and there has been difficulties in the sales of the company by SOO for the reduction of the quantity of orders such as world economy and construction competitions and OOO. In such difficult economic circumstances, the applicant corporation has made active efforts such as changing design for the early commencement of the construction of the building through the reduction of construction costs and maintenance and management costs. Therefore, the applicant corporation shall be deemed to have justifiable reasons for the failure to start the construction works within the grace period. Therefore, this disposition of imposition is unjust.

(b) Opinions of disposition agencies;

The claimant corporation asserts that the disposition of this case is unfair because there is a justifiable reason that the corporation could not use the land directly for the business within 2 years after the acquisition of the land at issue;

The requesting corporation obtained a building permit from the disposition authority (construction division) on September 21, 201, when eight months have elapsed since the acquisition of the land at issue, and selected a construction project on April 201, when seven months have elapsed since then, extended the commencement on August 17, 2012 for lack of construction funds due to economic depression and did not start up until now, the requesting corporation cannot be deemed to have made full efforts to use the land at issue for its unique duties during the grace period; and

The reason why the claimant corporation delayed the commencement of design modification for the reduction of construction costs due to the aggravation of financial resources due to the decrease in sales caused by global economy and construction competition is only an internal reason of the claimant corporation. Therefore, it is difficult to recognize that there is a justifiable reason. Therefore, the disposition by the disposition authority imposing acquisition tax, etc. is legitimate.

3. Hearing and determination

(a) Points in dispute;

Where a small or medium start-up enterprise which is a small or medium start-up enterprise has acquired land to use for its unique duties within the grace period, but has obtained approval after filing an application for the extension of commencement due to financial conditions, etc., the propriety of the request for the extension of commencement

(b) Relevant Acts;

(1) Restriction of Special Taxation Act (wholly amended by Act No. 11614, Jan. 1, 2013)

(2) Where a venture business prescribed by Presidential Decree among those referred to in Article 2 (1) of the Act on Special Measures for the Promotion of Venture Businesses (hereinafter referred to as "venture business") is verified as a venture business not later than December 31, 2012 pursuant to Article 25 of the same Act (hereinafter referred to as "small or Medium Venture Business") within three years after its establishment, the tax amount equivalent to 50/100 of the income tax or corporate tax on the income accrued from the relevant business shall be reduced or exempted for the taxable year in which the first income accrues after the date of its confirmation (where the date five years elapse from the date of confirmation as a venture business falls no income by the taxable year in which the date five years elapse from the date of confirmation as such falls) and for the taxable year that ends within three years from the date of commencement of the following taxable year: Provided, That where the confirmation of a venture business is revoked, the tax reduction or exemption for the taxable year

(3) Any property for business acquired by a small or medium start-up enterprise and a small or medium start-up venture enterprise within four years from the date of its establishment to conduct the relevant business shall be exempted from acquisition tax: Provided, That where such property is not used directly for the relevant business within two years from the date of its acquisition without justifiable grounds, or used or disposed of for other purposes (including lease; hereafter the same shall apply in this paragraph) without using it directly for the relevant business for other purposes, or where such property is used or disposed of for other purposes without justifiable grounds for two years from

C. Facts and determination

(1) In the review materials submitted by the agency and the requesting corporation, the following facts can be known.

(A) On April 13, 2007, the applicant corporation is a corporation established with the headquarters location (transfer of the headquarters to the present address on February 16, 2009), landscaping planning, design and supervision business, etc. as its objective business and confirmed by the certified copy of the corporate register.

(B) The applicant corporation has obtained the confirmation of venture business from the OO on September 29, 2009 as a technology evaluation guarantee company (Korea Technology Finance Corporation).

(C) On January 10, 201, the applicant corporation acquired the land at issue through sale, and was exempted from acquisition tax on January 11, 201, after which it was exempted from acquisition tax. The plan for use of the land at issue submitted at the time of application for exemption is indicated as a plan to construct a building on the key land and use it as an office.

(D) On August 17, 2012, the applicant corporation is confirmed in its application for extension of the commencement (the scheduled commencement date: March 2, 2013) on the ground of a lack of construction funds due to economic depression to the disposition agency.

(E) On May 15, 2012 and May 24, 2013, a public official in charge of tax affairs in charge of the disposition of the disposition of the disposition of the disposition of the disposition of the disposition of the disposition of the disposition of the disposition of the disposition of the disposition of the disposition of the disposition of the disposition of the disposition of the disposition

(F) The requesting corporation submitted four copies of a contract (agreement) under which it entered into a subcontract agreement with OO, etc. related to landscaping, and two copies of the loan interest repayment data, patent certificate (a park equipped with heat-raising means, stone stone stone, lighting, etc.).

(G) The applicant corporation suggested the settlement of accounts in the year 2009 and 2012, and the net income for the pertinent settlement of accounts sharply decreased in the year 2009 and 2010, but continued to have occurred the net income.

(2) Taking into account more relevant laws and facts and facts;

(A) Article 120(3) of the former Restriction of Special Taxation Act (wholly amended by Act No. 11614, Jan. 1, 2013) provides for exemption from acquisition tax on business property acquired by a small or medium start-up start-up enterprise and a small or medium start-up venture enterprise within four years from the date of establishment to conduct the relevant business; however, where such property is not used directly for the relevant business within two years from the date of acquisition without justifiable grounds, or is used or disposed for other purposes (including lease), or where such property is used or disposed for other purposes without justifiable grounds for two years from the date of its first use

(B) “Justifiable reasons not directly used for the pertinent type of business within the grace period under the above provision refers to cases where a cause for not using the acquired land directly for the pertinent type of business is due to external reasons, such as prohibition of or restriction on use by an administrative agency, etc., or where it is difficult to use the land internally for the pertinent type of business due to other objective reasons despite the normal efforts made to use the land for the pertinent type of business, and it does not constitute cases where the purchaser of the land delays or abandons the direct use of the real estate acquired through financial standing or profit-related problems, etc. of the relevant type of business (see, e.g., Supreme Court Decision 2003Du9978, Dec. 12

(C) In the case of a claimant corporation, after acquiring the land at issue on January 10, 201, the claimant corporation received a construction permit on September 21, 201 and obtained approval on August 17, 201, for the extension of construction period due to the reduction of construction cost due to financial standing on August 17, 2012, but the applicant applied for the extension of construction period under the Building Act and obtained approval on whether there is a justifiable reason or not. Determination of whether the applicant used the land within the grace period under the Local Tax Act and whether there is a separate and separate reason for the extension of construction period, cannot be deemed to have been extended by the grace period equivalent to

(D) In light of the assertion that the applicant corporation failed to start the construction work due to the financial situation caused by the business erosion, but the applicant corporation under the settlement of accounts continues to have the net income, it is difficult to view that there was a serious managerial difficulty which has not been used during the grace period. Such financial situation is the internal circumstance of the applicant corporation. In light of the fact that the applicant corporation has not continued the construction work at all after the application for the extension of the commencement period, it is difficult to recognize that the applicant corporation has made a normal effort to use the land at issue within the grace period for its unique duties.

(E) Therefore, it is determined that a disposition to collect acquisition tax, etc. reduced or exempted for the key land by a disposition agency is lawful.

4. Conclusion

This case shall be decided as ordered by Article 123 (4) of the Framework Act on Local Taxes and Articles 81 and 65 (1) 2 of the Framework Act on National Taxes because the petition for the trial has no merit as a result of the review.