Whether it is subject to a separate cumulative taxation as land annexed to a building

Land annexed to a building for which permission or approval for use has not been granted as a special aggregate taxation but is excluded from the scope of land subject to special aggregate taxation; however, the model house building for display cannot be deemed as a temporary building, so it shall not be excluded from the scope of land subject to special aggregate taxation.

The contents of the decision shall be the same as attached.

Man Doz 300

1. The defendant's disposition rejecting the correction of the comprehensive real estate holding tax against the plaintiff on March 18, 2009 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

쇠鹬 쇠鹬 3000 쇠鹬 3000

1. Details of the disposition;

A. As of June 1, 2007, the date of comprehensive real estate holding tax in Suwon-si, 2007, the Plaintiff reported to the Defendant the amount of KRW 809,58,170 of comprehensive real estate holding tax calculated by dividing the instant land into general aggregate taxation, and KRW 161,91,630 of comprehensive real estate holding tax, calculated by dividing it into general aggregate taxation, on December 14, 2007.

B. As the Plaintiff did not voluntarily pay the comprehensive real estate tax and special rural development tax in 2007, the Defendant determined and notified the Plaintiff that comprehensive real estate tax should be paid KRW 834,596,050 and KRW 166,919,210 by March 31, 2008.

C. On June 10, 2008, the Plaintiff filed a claim for correction of comprehensive real estate tax and special rural development tax against the Defendant on the ground that the land in this case was land annexed to the building, but the Defendant rejected its correction on March 18, 2009.

[Ground for Recognition: Facts without dispute, Gap 20, Eul 22, Eul 4, the purport of the whole pleadings]

2. Whether the disposition is lawful;

A. The plaintiff's assertion

For the following reasons, although the land of this case is deemed to be subject to cumulative taxation, the disposition of this case, which is deemed to be unlawful.

(1) On the instant land, a temporary building was established, and the actual completion of its removal was made on June 12, 2007. As of June 1, 2007, the instant land as of June 1, 2007, which is the tax base date, constitutes the land annexed to the building. Although the retention period of the said temporary building expired on May 25, 2007, the tax base date is 7 days after the expiry of the retention period, but Article 131(1) of the Enforcement Decree of the Local Tax Act intends to reduce the tax burden on the instant land temporarily in the state of site for preparation for construction after demolition of the above ground building, in light of the fact that the instant land also constitutes a “land annexed to the building” subject to separate taxation, which is the object of separate taxation.

(2) Although there were buildings under construction, the construction of the instant land was suspended due to the default of construction works, and thereafter, the Plaintiff filed an application for the building permit of the instant building for business facilities after acquiring the instant land, but the Suwon City rejected the application for the building permit on the ground that it was in establishing a Class 1 residential area plan for the instant land, which led to the prolonged suspension of construction works on the instant land for a long period. As such, the land annexed to the building under construction is included in the land subject to separate taxation, unless the construction is suspended for 6 months or longer without justifiable grounds. Although the construction works under construction in the instant land were suspended for a long period, it does not result in the Plaintiff’s fault, the instant land constitutes the land subject to separate taxation as the land annexed to the building under construction.

(3) The application of heavy taxation rate on the grounds that the administrative authority’s imposition of taxes is not in the process of construction rather than unfairly prohibiting the act of construction is in violation of the principle of gold speech or the principle of good faith.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) On September 22, 1993, KRK Limited Partnership did not complete the construction work after obtaining a construction permit for accommodation facilities (tourist hotel) on the instant land.

(2) The Plaintiff purchased the instant land on June 20, 203 and applied for a building permit for business facilities on the instant land several occasions from August 28 to 2007 of the same year to several times, but the Suwon City continued to return the instant application on the ground that the act of various private rights, such as development activities, is restricted, since the instant land was drafted a Class 1 district unit planning regarding the whole zone of the instant land.

(3) On May 31, 2004, the Plaintiff leased the instant land to MM Construction Co., Ltd. (hereinafter referred to as “MM Construction”), and MM Construction completed a temporary building construction report from DD on June 9, 2004 to May 30, 2005, with the retention period fixed from DD, and constructed a sample house of the second floor size of the size of 1,642.85 square meters on the instant land (hereinafter referred to as “instant building”), and filed a report on the extension of the retention period of temporary buildings on two occasions thereafter, and the retention period reported on May 25, 2007 expired.

(4) On April 23, 2007, the Construction Deliberation Committee of Suwon-si had a result of deliberation that it is reasonable to permit the construction of sales facilities and apartment houses on the instant land. The Plaintiff filed an application for a new construction permit on May 23, 2007. The construction cost market accepted the application on September 3, 2007.

(5) Around May 2007, removal of the instant building began, and its removal was completed on June 12 of the same year. However, MM construction reported on May 14, 2007 to be exempted from the imposition of property tax on the instant building.

(6) On August 14, 2007, a temporary building for the purpose of the site office was built on the instant land.

[Reasons for Recognition: Facts without dispute, entry of Gap's 4, 5, 6, 16, 17, and 21, and the purport of the whole pleadings]

D. Determination

(1) Whether this case’s land is a land annexed to a building where construction is being conducted, and whether there exist justifiable grounds for suspension of construction for not less than six months

"Building under construction" under Article 131 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 20183, Jul. 23, 2007; hereinafter referred to as "Enforcement Decree of the Local Tax Act") means the case where construction is commenced as of the base date of taxation, and it shall not include the case where preparation works necessary for the commencement of construction, such as application for a construction permit, are conducted (see Supreme Court Decision 96Nu1558, Sept. 9, 197).

In the instant case, the Plaintiff did not obtain permission for construction in the instant land and did not start construction as of the tax base date. If so, even if there exist justifiable grounds for not commencing construction, land annexed to the building intended to construct a future shall not be deemed to constitute land annexed to the building under construction as prescribed by Article 131(1) of the Enforcement Decree of the Local Tax Act. The Plaintiff’s assertion on this issue is without merit (this case’s land is a lodging facility, a building which was under construction, and a building for which the Plaintiff intends to newly construct with a construction permit after obtaining a new construction permit is a business facility, and thus, a delay in construction permission for business facilities cannot be deemed as a justifiable ground

(2) Whether the principle of good faith is violated

In general, in order to apply the principle of good faith to the acts of the tax authorities in tax legal relations, the tax authorities should express the public opinion that is the object of trust to the taxpayer, and the second, the taxpayer should not be responsible for the taxpayer's reliance on the tax authority's reliance on the tax authority's reliance on the tax authority's reliance on the tax authority's reliance on the tax authority's reliance, third, the taxpayer should act in trust on the tax authority's reliance on what is the reliance on the tax authority's reliance, and fourth,

However, in this case, it cannot be interpreted that there was an expression of public opinion by the tax authority that the Suwon Market did not take the land of this case as a general aggregate taxation subject to general aggregate taxation. Therefore, it cannot be applied to the disposition of this case or the principle of trust and good faith. Therefore, the plaintiff's assertion on this issue is without merit.

(3) Whether the instant land constitutes land annexed to a building

(A) Under the principle of no taxation without law, tax laws shall be interpreted in accordance with the text of the law, barring special circumstances, regardless of whether they are taxable requirements, tax exemption or tax exemption requirements, and it shall not be permitted to expand or analogically interpret without reasonable grounds (see Supreme Court Decision 2000Du10489, Jan. 25, 2002).

(B) Article 182(1)2 of the Local Tax Act provides that the land annexed to a building owned by a taxpayer as of the tax base date shall be subject to separate taxation, and the Presidential Decree shall delegate the scope of the land annexed to the building. According to the proviso of Article 131-2(1) of the Enforcement Decree of the Local Tax Act, the land annexed to a building for which permission, etc. is required to be obtained pursuant to the provisions of relevant Acts and subordinate statutes, such as the Building Act, and which is not approved for use (including approval for temporary use) is excluded from the scope of the

On the other hand, Article 8 of the former Building Act (amended by Act No. 8662 of Oct. 17, 2007; hereinafter referred to as the "Building Act") provides that "any temporary building subject to reporting shall be subject to Article 9, Article 15, Paragraph 1 of the Building Act, and Article 15, Paragraph 2 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 20647 of Feb. 22, 2008; hereinafter referred to as the "Enforcement Decree of the Building Act") as one of the temporary buildings subject to reporting on construction pursuant to Article 15, Paragraph 5, Paragraph 4 of the Building Act, "a sample house for display and others similar thereto."

In addition, Article 18 of the Building Act stipulates only the buildings permitted or reported under the provisions of Article 8, Article 9 or Paragraph 1 of Article 15 are subject to approval for use.

(C) Considering the above facts in light of the principle of strict interpretation of taxation requirements and the contents of relevant provisions, the instant land is not land subject to general aggregate taxation, but land subject to separate aggregate taxation.

① Since the removal of the instant building was completed on June 12, 2007, the current status of the instant land as of June 1, 2007 is not a site.

② Since the retention period of the instant building expired on May 25, 2007, the Defendant asserts that the instant land should be excluded from the aggregate taxation without permission, etc. However, the instant building is a model house for display as stipulated in Article 15(4)4 of the Enforcement Decree of the Building Act, which is a temporary building subject to a declaration of construction under Article 15(2) of the Building Act, and cannot be deemed as falling under a building subject to a permission or report under Articles 8, 9, and 15(1) of the Building Act, and cannot be deemed as falling under a building subject to a separate aggregate taxation under Article 18 of the Building Act. Accordingly, the instant building cannot be deemed as a building subject to a permission, etc. under the provisions of related Acts and subordinate statutes, such as the Building Act, which is subject to a separate aggregate taxation.

③ As of June 1, 2007, the instant building is a temporary building, the retention period of which has expired without filing a report on extension. However, the instant building is not a building that needs to be permitted or reported under Articles 8, 9, and 15(1) of the former Building Act, but a building that does not fall under the instant building that should be approved for use under Article 18 of the Building Act, or a building that is being used without obtaining approval for use, solely on the ground that the retention period of the reported temporary building has expired.

(4) Sub-determination

Therefore, the instant disposition taken on the premise that the instant land is subject to general aggregate taxation is unlawful.

3. Conclusion

The plaintiff's claim is justified and accepted.