Whether the transfer of the instant land is subject to the exemption of special surtax

The land of this case cannot be viewed as being directly used for the plaintiff's business, and therefore the transfer of the land does not constitute the object of exemption from special surtax.

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

1. The plaintiff's claim is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.

1. Details of the imposition;

In full view of the evidence Nos. 1 through 3, evidence No. 8, evidence No. 10-1 through 3, evidence No. 12-1, evidence No. 12-2, evidence No. 31, evidence No. 38, evidence No. 1-1 through 12, evidence No. 4, evidence No. 5, evidence No. 6-1 through 3, and evidence No. 7-1 through No. 7-3, the following facts can be acknowledged as to the grounds for the disposition of this case stated in the purport of the claim.

A. The Plaintiff was a juristic person established for the purpose of the rational management of public telecommunications business and the promotion of telecommunications technology after obtaining permission for establishment under the repealed Korea Telecommunication Corporation Act on June 5, 1981, and the establishment, operation, etc. of public telecommunications facilities managed by the previous Ministry of Communications.

In accordance with his jurisdiction, the site and ancillary facilities of the telegraph or telephone station, which had been under the management of the former bureau chief, were handed over. In the case of the independent telegraph or telephone station that was operated independently from the post office, the site and ancillary facilities were acquired in the form of investment in kind by the State. In the case of the integrated telegraph or telephone station (integrated station), which was installed and operated together with the post office, the site and building of the substitute office required by the physical department in accordance with the Convention on the Handling of Integrated History between the Plaintiff and the Minister of Communications on December 28, 1984, are acquired and newly built, exchanged with the relevant integrated bureau, but if the exchange price is not identical, the difference between the two consolidated bureau and the office building will be exchanged in a lump sum and settled in cash.

나. 위 협약에 따라 원고와 체신부장관은 1989. 7. 15. 원고가 통합국사와의 교환을 위하여 ㅇㅇ시로부터 취득한 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 대 9,314.7평방미터(이하 위 목동 대지를 이 사건 대지 로 줄인다) 등의 부동산과 체신부장관의 관리 아래 있는 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 소재 사원아파트 부지 및 수개의 통합국사에 대하여 교환계약을 체결한 것을 비롯하여, 1989 사업년도기간(원고의 사업년도는 매년 1. 1.부터 12. 31.까지이다)동안 수회에 걸쳐서 원고 소유의 대용청사와 체신부장관이 관리하는 통합국사에 대하여 교환계약을 체결하여 상대방에게 모두 소유권이전등기를 마쳤다(다만 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 245의 8 대81평방미터 및 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 11의 11 대36평방미터는 위 협약에 따라 통합국사와 교환한 것이 아니라 개별적으로 양도한 것이다).

다. 원고는 1989 사업년도에 대한 법인세 및 특별부가세를 신고함에 있어 원고가 위 교환계약에 따라 국가에 양도한 토지중 보유기간이 2년 이상이 되는 위 ㅇㅇ동 소재 대지 등 대지 40여필지 합계38,429.8평방미터 및 그 지상 건물 9개동 합계7,706.34평방미터가 구・법인세법(1989. 12. 30. 법률 제4165호로 개정되기 전의 것) 제59의 3 제2항 제2호 소정의 특별부가세 면제대상에 해당된다고하여 구・법인세법시행령(1989. 12. 30. 령제12878호로 개정되기 전의 것) 제124조의 6 제4항 에 의한 특별부가세면제신청서를 제출하여 실지거래가액에 의한 양도차익 도합 금4,578,022,478원에 대한 특별부가세 금1,144,505,620원을 면제받았다.

D. However, the defendant's business is the plaintiff's business of the above real estate that the plaintiff applied for exemption from special surtax.

The special surtax of this case was imposed on the plaintiff on April 20, 1991 on the ground that it does not fall under the object of the exemption of the special surtax under Article 59-3 (2) 2 of the former Corporate Tax Act, and the special surtax of this case was imposed on the plaintiff on the ground that it does not fall under the object of the exemption of the special surtax under Article 59-3 (2) 2 of the former Corporate Tax Act (the defendant issued an additional disposition of KRW 2,192,93,120 and KRW 102,849,000,000, which included the corporate tax of the plaintiff for the business year 1989 (the defendant corrected corporate tax for the business year of 1989).

2. The legality of an additional disposition.

A. The plaintiff's assertion

(1) Among the entire real estate of this case, the site of this case is provided to the business related to the building built by the State (the body part) on the basis of the Act on Special Cases concerning the Acquisition of Land for Public Use and the Compensation for Loss, and it is transferred to the country. Thus, the site of this case is subject to the exemption of special surtax under Article 57 (1) 1 of the former Act on the Regulation of Tax Reduction and Exemption (amended by Act No. 4165 of Dec. 30, 1989). In addition, since the land of this case is acquired to exchange with the consolidated company to be used as fixed assets, it cannot be deemed that it is not used for the plaintiff's business, and in light of the legislative intent of the special surtax system to prevent speculation, it is subject to the exemption of special surtax under Article 59-3 (2) 2 of the former Corporate Tax Act.

(2) Even if the instant land was not directly used for the Plaintiff’s business, the Plaintiff acquired the instant land under the direction of the Minister of Communications, upon the instruction of the Minister of Communications.

As long as the land in this case was not used during the holding period and it was transferred to a country by the agreement with the Minister of Communications on December 28, 1984, the transfer of the land in this case constitutes the subject of exemption from special surtax because it falls under the category of non-business real estate as stipulated in Article 20-2 (2) 4 of the former Enforcement Rule of the Regulation on Tax Reduction and Exemption (amended by Ordinance of the Ministry of Finance No. 1822 of Apr. 10, 1990) of the former Enforcement Rule of the Corporate Tax Act and Article 18 (4) 1 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1835 of Oct. 22, 1990) and excluded from special surtax because it falls under the category of non-business real estate, and the land in this case is in the land in the land readjustment project zone, and its lot number and pointed out from 1980 to Aug. 18, 1988.

B. Defendant’s assertion

The plaintiff acquired the land of this case for the purpose of exchanging real estate managed by the Minister of Communications, and was not directly used for the plaintiff's business, so the land of this case is the Gu.

The plaintiff's assertion is without merit because it is not subject to the exemption of special surtax under the Corporate Tax Act or the Act on the Tax Reduction and Exemption, and the plaintiff did not submit the amount of tax to be paid pursuant to Article 57 (4) of the former and the Tax Reduction and Exemption Act.

C. Provisions of statutes

(1) Exemption of special surtax under the Act on the Regulation of Tax Reduction and Exemption

Article 57 (1) of the former Act on the Regulation of Tax Reduction and Exemption (amended by Act No. 57 (1) provides that "where land for public projects, etc. to which the Act on Special Cases concerning the Acquisition of Land for Public Use and Compensation for Loss applies is transferred to the State or a local government" shall be exempted from capital gains tax or special surtax on any income accruing from the transfer of land for public projects, etc. falling under any of the following subparagraphs in the main sentence of Article 57 (1) of the same Act.

(2) Exemption of special surtax under the old and the Corporate Tax Act

Article 59-3 (2) of the former and Corporate Tax Act provides that the special surtax shall be exempted on the income falling under any of the following subparagraphs under the conditions as prescribed by the Presidential Decree. Article 59-3 (2) of the former and Corporate Tax Act provides that "The income accrued from the transfer of the land, etc. prescribed by the Presidential Decree, which has been used directly for the business of the relevant corporation for two or more consecutive years until the date of transfer (excluding the stock farm, sales and rental business) for the purpose of acquiring other fixed assets." Article 124-6 (1) of the Enforcement Decree of the former (amended by Presidential Decree No. 12878 of December 30, 1989) provides that "Land, etc. prescribed by the Presidential Decree" shall not fall under any of the following subparagraphs. Article 59-3 (2) 5 provides that "other land not used directly for the business of the relevant corporation, which is not related to the business of the corporation, and Article 59-6 (4) of the Enforcement Rule of the same Act provides that "Land, etc. not directly related to the business of the relevant corporation shall be used:

(3) Provisions excluding special surtax reduction and exemption

Article 66 of the former Act on the Regulation of Tax Reduction and Exemption shall not apply to the real estate prescribed by the Presidential Decree among those which are not directly related to the business of a juristic person. Article 54 of the former Enforcement Decree of the Act on the Regulation of Tax Reduction and Exemption provides that "the real estate prescribed by the Presidential Decree" shall mean the real estate acquired after January 1, 1981 and are not related to the business of a juristic person prescribed by the Ordinance of the Ministry of Finance and Economy. Article 20-2 (1) of the former Enforcement Rule of the Act on the Regulation of Tax Reduction and Exemption and Exemption of Taxes provides that "the real estate which is not related to the business of a juristic person prescribed by the Ordinance of the Ministry of Finance and Economy" shall mean the real estate falling under any of the following subparagraphs which has been continuously used for the business of the juristic person for not less than one year until the date of transfer, and Article 54 (2) of the former Enforcement Rule of the Corporate Tax Act provides that "The real estate falling under any of the following subparagraphs shall be prohibited by Article 10 (1) through 4 of the former Enforcement Rule.

D. Whether the transfer of the site of this case is subject to the exemption of special surtax

In full view of the descriptions of Gap evidence Nos. 4, 5, 6, 7, 11, 32 through 37, and the whole purport of the pleading with respect to the testimony of the witness tiny and tiny, the following facts may be acknowledged and there is no other counter-proofs.

(1) 체신부장관은 1985. 5월경 당시 이 사건 대지 일대에 토지구획정리사업을 시행하고 있던 ㅇㅇ시로부터 이 사건 대지를 서울국제우체국부지로 사

용하기로 양해를 받은 다음, 그무렵 원고와의 사이에 원고가 이 사건 대지를 ㅇㅇ시로부터 취득하여 체신부장관이 관리하고 있는 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 소재 사원 아파트 및 연수원부지와 서로 교환하기로 협의를 하였다(교환방법은 위 통합국사협약에 따르되 1985년중 교환대상재산을 재평가하여 정산하기로 하였다.)

(2) 이 사건 대지는 위 토지구획정리사업의 시행으로 인하여 그 지번 및 지적이 확정되지 아니하였음에도 1985. 6. 27.경에 이르러 건물신축공사가 가능하게되었고, 이에 따라 체신부 조달사무소는 1986. 8월경 ㅇㅇ건설종합건설주식회사와 도급계약을 체결하여 위 서울국제우체국건물의 신축공사에 착공하여

The completion of April 19, 1989.

(3) 한편 원고는 위 청사신축공사가 진행중이던 1987. 2. 28. ㅇㅇ시와의 사이에 이 사건 대지에 관하여 매매계약을 체결하였다가(다만 1989. 4. 26. 및 같은해 5. 16. 그 지번을 확정 표시하거나 매수인표시를 일부 정정하였다), 1988. 5. 18. 원고 앞으로 소유권이전등기를 마친 다음 같은해 7. 15. 앞서 살펴본 바와 같이 체신부장관과의 사이에 교환계약을 체결하여 같은해 9. 29. 나라 앞으로 소유권이전등기를 마쳤다.

According to the above facts, the transfer of the land of this case is subject to the non-taxation of special surtax.

The Ministry should be seen as follows.

(1) The plaintiff acquired the land of this case for the purpose of exchanging with the substitute building, so long as the building of the Seoul International Postal Office Building under the body part was constructed on that ground.

The site of this case cannot be deemed as being directly used for the plaintiff's business, and therefore, the transfer of the land does not constitute the object of the exemption of special surtax under Article 59-3 (2) 2 of the former and Corporate Tax Act, Article 124-6 (1) of the Enforcement Decree of the same Act, and Article 59-6 (4) 1 of the Enforcement Rule of the same Act.

(2) In addition, so long as the instant site is provided as a site for Seoul International Postal Office building under the Ministry of Strategy and Finance and transferred to a country, the transfer of the said land shall be subject to non-taxation of special surtax under Article 57 (1) 1 of the former Regulations on the Regulation of Tax Reduction and Exemption. However, insofar as it is not used directly for the Plaintiff’s business, the application of the provisions on special surtax reduction and exemption under the former and Tax Reduction and Exemption Regulation Act shall be excluded pursuant to Article 6 of the former and Tax Reduction and Exemption Regulation Act, Article 54 of the Enforcement Decree of the same Act, and Article 20-2 (1) of the Enforcement Rule of the same Act, and even if the Plaintiff acquired the instant site in accordance with the Integrated State Organization Convention with the Minister of Communications, the land cannot be deemed as land prohibited or restricted from non-business property under Article 20-2 (2) 4 of the former Enforcement Rule of the Act, and Article 18 (4) 1 of the former Enforcement Rule of the Corporate Tax Act cannot be deemed as land excluded from non-business property property.

3. Conclusion

Therefore, the disposition imposing the special surtax of this case is legitimate, so the plaintiff's claim seeking the revocation is dismissed as it is without merit, and the costs of lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.