(영문) 부산지방법원 2017.1.26. 선고 2016구합24503 판결

The imposition of local education tax of more than 14,162,229 won and the imposition of local education tax of more than 2,215,652 won shall be revoked, respectively.

Reasons

1. Details of the disposition;

A. The Plaintiff is the owner of each of the instant lands with a total of 3,233 square meters of land, including 119-1 large 420 square meters, Busan-dong, Busan-dong, 119-1 large 420 square meters (hereinafter “each of the instant lands”).

B. On April 9, 2010, the Plaintiff set approximately 555 square meters out of each of the instant land to Hart Co., Ltd. for seven years from the date when the monthly period of lease was calculated. On April 19, 2010, the Plaintiff leased each of the instant land to Hart Co., Ltd. as of June 19, 2010 to June 18, 2017 by setting the lease period of KRW 1,342.15 square meters out of the instant land.

C. On June 28, 2010, Earart Co., Ltd and Ear Line Co., Ltd. built a temporary building with the permission to build a temporary building (not later than December 31, 201) on each leased land (hereinafter “the instant temporary building”) from the Defendant on each leased land, and on August 27, 2010, approved the use of the temporary building from the Defendant on each of the following grounds:

D. After that, the Plaintiff did not report the extension of the retention period until December 31, 2015, which is the expiration date of the retention period, on June 21, 2016, and again reported the extension of the retention period of the instant temporary building. The Defendant accepted it on August 24, 2016, and issued a certificate of completion of report on extension of the retention period of the temporary building to the Plaintiff on August 25, 2016 (the retention period until December 31, 2016).

E. On September 5, 2016, the Defendant issued the instant disposition imposing and notifying property tax of KRW 17,556,690, local education tax, and KRW 2,894,540, respectively, on the premise that the retention period of the instant temporary building expires on December 31, 2015, and thus, the land appurtenant to the instant temporary building, among each of the instant land as of June 1, 2016, constitutes land subject to general aggregate taxation without obtaining approval for use.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 11 (including each number, hereinafter the same shall apply), Eul evidence Nos. 3 through 5, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

1) Although the Plaintiff did not report the extension of the retention period of a temporary building before its retention period expires due to a simple error, on June 21, 2016, the Plaintiff reported the extension of retention period for the temporary building of this case and received a report completion certificate from the Defendant on August 25, 2016 and the extension of retention period from the Defendant. For the following reasons, the land annexed to the temporary building of this case does not constitute “land annexed to the building under use without obtaining permission, etc. for a building subject to permission, etc. under the relevant Acts and subordinate statutes, including the Building Act, which is subject to separate cumulative taxation under the proviso of Article 101(1) of the Enforcement Decree of the Local Tax Act.

A) According to Article 20(2) of the Building Act and the proviso of Article 15(1)2 of the Enforcement Decree of the Building Act, the retention period is naturally extended until an urban planning project is implemented, barring any other circumstance.

B) Even if a building is demolished or destroyed, if six months have not passed since it was still constructed, the provisions of Article 106(1)2(c) of the Local Tax Act and Article 103-2 of the Enforcement Decree of the Local Tax Act, which provide that the land appurtenant to the building shall be considered as a separate aggregate taxation rather than a general aggregate taxation, shall apply mutatis mutandis to the case where the filing period of the extension is exceeded as in the case of the Plaintiff. As long as the retention period can be extended until the urban planning project is implemented, and the report on extension of retention period of the temporary building of this case is accepted prior to the instant disposition, the defect arising from the expiration of retention period was retroactively cured

2) Therefore, the land annexed to the instant temporary building shall be deemed as the land subject to separate taxation. In that case, the pertinent amount of tax to be imposed on the Plaintiff shall be KRW 14,162,229 of the property tax and KRW 2,215,652 of the local education tax. Since the part exceeding the pertinent amount of tax in the instant disposition is unlawful, it shall be revoked

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

Article 106 (1) of the Local Tax Act provides that "land subject to property tax on land shall be classified into general aggregate taxation, special aggregate taxation and separate taxation pursuant to the following subparagraphs, and the main sentence of subparagraph 1 provides that "land excluding land subject to special aggregate taxation or separate taxation among land owned by a person liable to pay tax as of the tax base date: The main sentence of subparagraph 2 provides that "land subject to separate taxation" shall be "land owned by a person liable to pay tax, which falls under any of the following items among land owned by a person liable to pay tax as of the tax base date:" and subparagraph 2 (a) provides that "land annexed to a building prescribed by Presidential Decree, such as land annexed to a factory building". In addition, Article 101 (1) of the Enforcement Decree of the Local Tax Act provides that "land annexed to a building prescribed by Presidential Decree, such as land annexed to a building for factory" means land annexed to a building falling under any of the following subparagraphs: Provided, That buildings which are subject to permission, etc. under the related Acts and subordinate statutes, such as the Building Act, and are excluded:

However, on June 21, 2016, after the expiration of the retention period of the instant temporary building on December 31, 2015 and the Plaintiff reported the extension of the retention period of the instant temporary building on June 1, 2016, which was the tax base date for local tax assessment in 2016, and the Defendant received a report completion certificate on August 25, 2016 (up to December 31, 2016) of the extension of retention period of the temporary building (up to the retention period until December 31, 2016), the land annexed to the instant temporary building constitutes the land subject to permission, etc. under the relevant statutes, such as the Building Act as at the tax base date, and thus, it is reasonable to view it as the land excluded from the aggregate aggregate taxation subject to separate taxation pursuant to Article 101(1) of the Enforcement Decree of the Local Tax Act.

According to Article 20(2) of the Building Act and the proviso of Article 15(1)2 of the Enforcement Decree of the Building Act, the Plaintiff asserts that the retention period is naturally extended until a urban planning project is implemented, barring any other circumstances. However, Article 15-2(2) of the Enforcement Decree of the Building Act provides that “the owner of a temporary building who intends to extend the retention period shall file an application for permission or file a report with the Special Self-Governing City Mayor, the Special Self-Governing Province Governor, or the head of a Si/Gun/Gu according to the following classification.” Article 15-3 of the Enforcement Decree of the Building Act provides that “the owner of a temporary building subject to permission: 14 days before the retention period expires.” Article 15-3 of the Enforcement Decree of the Building Act provides that a temporary building established in a factory (subparagraph 1(a)), a fixed type of factory for agriculture or fishery, a simple place of work, or a livestock raising room (subparagraph 1(b) shall be deemed to have been extended without permission or filing a report. Thus, the instant temporary building should not be maintained until December 316, 2016.

Therefore, we cannot accept the plaintiff's above argument.

In addition, even if a building is removed or destroyed, if six months have not passed since it was still constructed, the land annexed thereto shall be deemed to be a construction without being subject to general aggregate taxation, and Article 106(1)2(c) of the Local Tax Act and Article 103-2 of the Enforcement Decree of the Local Tax Act, which provide that a building shall be subject to special aggregate taxation, rather than general aggregate taxation, should be applied mutatis mutandis to the case of the Plaintiff. However, in light of the principle of no taxation without the law, or the principle of no taxation without the law, or the requirement for non-taxation or tax reduction or exemption, and the interpretation of tax laws shall be interpreted as a legal text, and it shall not be extensively interpreted or analogically interpreted without any reasonable reason (see Supreme Court Decision 2002Du9537, Jan. 24, 2003). The aggregate land tax base date is June 1, 200, which is the tax base date of the Plaintiff’s temporary building owned the land itself, and the Defendant’s removal or destruction of the building can not be accepted by analogy.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.