Scope of application of "Do and retail business" under Article 101 (1) 8 of the Enforcement Decree of the former Local Tax Act, which is permitted to be established under the Do and Retail Trade Promotion Act.

Article 138 (1) 3 of the former Local Tax Act (amended by Act No. 5615 of Dec. 31, 1998) provides that the tax rate shall be five times the relevant tax rate provided for in Article 131 in the case of real estate registration following the establishment of a branch of a corporation in a large city and real estate registration after the establishment thereof. The proviso of Article 138 (1) of the same Act provides that the registration tax shall not be levied on the business type prescribed by the Presidential Decree. Article 101 (1) 8 of the former Enforcement Decree (amended by Presidential Decree No. 15489 of Oct. 1, 1997) of the same Act (amended by Presidential Decree No. 15489 of Oct. 1, 199) provides that "Do wholesale and retail business which has been permitted to be established under the Do wholesale and Retail Trade Promotion Act shall be excluded from the heavy taxation of registration tax. The case of "Do wholesale and retail business which has been permitted under the Do Retail and Retail Business Promotion Act" is not included in the case of a market operator or its succession.

Article 138 (1) 3 of the former Local Tax Act (amended by Act No. 5615 of Dec. 31, 1998), Article 101 (1) 8 and Article 102 (2) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15489 of Oct. 1, 1997), Article 2 subparagraph 1, Article 5, and Article 6 (1) of the former Do and Retail Trade Promotion Act (amended by Act No. 5327 of Apr. 10, 1997)

New Bank of Korea (Attorney Lee Jae-soo et al., Counsel for defendant-appellee)

The head of Dobong-gu Seoul Metropolitan Government

Seoul High Court Decision 97Gu49277 delivered on May 7, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

Article 138 (1) 3 of the former Local Tax Act (amended by Act No. 4995 of Dec. 6, 1995; hereinafter the same shall apply) provides that "when real estate registration is made due to the establishment of a branch office in a large city and real estate after the establishment thereof, the tax rate shall be five times the corresponding tax rate provided in Article 131." The proviso of Article 138 (1) provides that "registration of the type of business prescribed by Presidential Decree shall not be imposed heavy registration tax," and Article 138 (1) of the former Local Tax Act (amended by Presidential Decree No. 5615 of Dec. 31, 1998; hereinafter the same shall apply) provides that "any person who has succeeded to the status of the branch office in the large city shall not be subject to permission for the establishment of the wholesale market or retail business pursuant to Presidential Decree No. 15489 of Oct. 1, 199; hereinafter the same shall apply)."

Examining the reasoning of the judgment below in light of the records, the court below is just in rejecting the plaintiff's assertion that the transfer registration of ownership made in the plaintiff's future is exempt from heavy registration tax on the ground that it does not constitute "Do and retail business permitted to be established under the "Do and Retail Business Promotion Act" under Article 101 (1) 8 of the Enforcement Decree of the same Act, since the plaintiff's apartment price No. 101, part of the apartment price in the judgment of the court below, which was approved to open the market under the former Do and Retail Business Promotion Act, was established by the non-party Korea-Japan Co., Ltd. which was the market founder, and then sold it within five years from the non-party company, and there is no error in the misapprehension of the legal principles as to the exemption from heavy registration tax, as pointed out in the appellate brief, and there is no error of law in the misapprehension

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)