The propriety of the disposition denying the special surtax reduction and exemption by deeming the corporation as non-business real estate

The standard excess land prescribed by the Enforcement Decree of the Factory Placement Act shall constitute land for non-business use among land annexed to the factory.

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

1. The part of the imposition disposition of KRW 57,275,770, which the Defendant issued against the Plaintiff as of April 16, 1991, exceeds KRW 149,69,697,590, which the Defendant imposed on the Plaintiff as of April 16, 1991, shall be revoked. 2. The remainder of the Plaintiff’s claim shall be dismissed. 3. This portion of the litigation costs shall be three minutes, and the two parts shall be borne by the Defendant, and

1. Details of the imposition;

원고회사는 가방제조업을 하는 법인으로서 1982. 3. 22.경 ㅇㅇ ㅇㅇ구 ㅇㅇ동 ㅇㅇ의 1 대지 4,775.40평방미터 및 지상건물 1,690,91평방미터를 취득하여 가방제조공장으로 사용하다가 1987. 11. 1. 위 공장을 ㅇㅇ으로 이전하면서 1989. 6. 7.경 위 대지 및 건물을 매각한 것에 대하여, 피고는 이를 전부 업무용으로 인정하여 특별부가세를 면제하였다가 1991. 3. 서울지방국세청의 감사에서 지적을 받고 1991. 4. 16.자로 위 대지 4,775.40평방미터 중 공장기준면적율 50퍼센트를 초과하는 부분에 해당하는 토지 1,393.58평방미터를 비업무용부동산으로 보고, 이에 대하여 조세감면규제법 제66조의 규정에 의한 특별부가세 감면을 배제하고 특별부가세 금154,429,340원을 법인세 추가분으로 부과하였다가 기준초과면적을 계산함에 있어 철도접도구역 면적 42.7평방미터는 기준초과면적에서 제외되어야 한다는1991. 11. 15.자 국세심판소의 결정에 따라 1991. 12. 4. 법인세를 금149,697,590원으로 변경하여 부과처분한 사실은 당사자 사이에 다툼이 없다.

2. Whether the disposition of imposition is lawful.

The plaintiff asserts that the size of the factory of the plaintiff company is 2,262.22 square meters higher than 1,690.91 square meters as stated in the building ledger in fact, and that if the building area additionally built in the factory area is combined with 154.30 square meters, it is 2,262 square meters in total, and that the total size of the factory is 40 percent in total at the time when the plaintiff acquires the building site and building of the above factory on March 22, 1982, and the standard factory area is 40 percent in total at the time when the building site and building of the above factory are acquired, and it is considered as 10 percent in total as 2,262.22 square meters in total, 5,65.5 square meters in size and 4,775.40 square meters in size of the factory site of the above case, and thus, the defendant's disposition of imposition of special surtax is more than 4,775 square meters in total as it is illegal.

A. Therefore, first of all, we examine the actual area of the factory of this case.

If Gap evidence Nos. 4, Gap evidence Nos. 1, 2, and 3, and witness Kim -, Kim Kim -, Kim - interest, and Kim -young's testimony, although the area of the factory building of this case was registered as 1,690.91 square meters on the building management ledger, the area of the factory building of this case is recorded as 1,690.91 square meters, as shown in the attached Form No. 12-1, 2, Eul evidence No. 3, Eul evidence No. 4, and Eul evidence No. 5, the actual area of the factory of this case is 2,107.92 square meters as shown in the attached Form No. 12-1, 2, 3, and 5, and there is no other counter evidence. Accordingly, according to this, the actual area of the factory of this case is 2,107.92 square meters.

B. We examine whether the temporary building additionally constructed by the Plaintiff corresponds to the construction area of a construction area of 154.3 square meters.

According to the provision of Article 98(2) of the Enforcement Rule of the Building Act, the Plaintiff’s construction of the above temporary building is impossible because the building-to-land ratio was 29.7% of the above building site and the building-to-land ratio could not meet the standard factory area unless the building was demolished and reconstructed. In the case of reconstruction, it is no longer possible to secure the standard factory area. Thus, temporary buildings of 154.3 square meters cannot be used as part of the factory building in order to maintain the shortage of the factory building. Thus, this constitutes a legitimate ground, and the head of the Si/Gun cannot acknowledge that the above temporary building should be included in the building construction area for 19.6% of the above temporary building. According to the provision of Article 98(2) of the Building Act, if the building building-to-land ratio was 19.7% of the above building-to-land ratio and the building building-to-land ratio was 19.6% of the building building building area for which the Plaintiff’s construction permit should be included in the building area under his jurisdiction or 26.

C. Therefore, we examine how much the land for non-business use (standard excess land) among the land area of the Plaintiff Company’s factory site becomes.

According to Article 66 of the Regulation of Tax Reduction and Exemption Act, the provisions of this Act or other Acts concerning non-taxation, reduction and exemption of special taxation shall not apply to real estate which is not directly related to the business of a juristic person. According to Article 54 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12570 of July 4, 1989), the term "real estate as prescribed by Presidential Decree" means real estate acquired after January 1, 1981 and falling under the criteria for determining real estate properties which are not related to the business of a juristic person as prescribed by Ordinance of the Ministry of Finance and Economy. According to Article 20-2 (1) of the Enforcement Decree of the Act on the Regulation of Tax Reduction and Exemption and Exemption (amended by Ordinance of the Ministry of Finance and Economy No. 1806 of Dec. 30, 1989), the term "one-one-third of the following standards for industrial construction areas as prescribed by Ordinance of the Ministry of Finance and Economy" means one-third of the following real estate:

It is clear that according to each of the above provisions, when calculating land for non-business use among the land annexed to the factory of this case, it would be 516.86 square meters as shown in the separate sheet.

The plaintiff asserted that the standard factory area ratio at the time of purchasing the factory site and building of this case from March 22, 1982 is 40 percent under Article 6 of the Industrial Placement Act, and furthermore, it should be calculated on the basis of non-business since the basic area is 10 percent up to 10 percent. However, as the transfer date of the factory of this case is applicable on June 7, 1989, this notice under Paragraph 1 of the Addenda of the factory site standard announcement (Public Notice No. 86-20, Jun. 4, 1986) applied at the time of transfer as of July 1, 1986, is the same as that of the above factory site, and if the existing business land is newly owned for non-business purposes as the basic area ratio of the factory site, it shall not exceed 10 percent from the date of implementation of the amended Enforcement Decree of the Corporate Tax Act, and it shall not be deemed that the size of the factory site of this case is less than 10 percent for non-business purposes purposes purposes purposes purposes purposes purposes purposes purposes.

Accordingly, in relation to the occasional amount of corporate tax in 1981 to be imposed on the plaintiff, this is the amount indicated in the attached Table of corporate tax, so the defendant's disposition of this case is legitimate as to the amount of corporate tax in 52,275,70 won, but the excessive portion cannot be avoided due to its illegality.

3. Conclusion

Therefore, the plaintiff's claim of this case is legitimate within the above scope of recognition, and it is unfair to accept the remaining claims, and it is so dismissed. It is so decided as per Disposition.