(영문) 서울행정법원 2007.10.23.선고 2007구합17984 판결

1. The Defendant’s disposition on September 22, 2006 on property tax of 933, 99, 320 won, urban planning tax of 334,021, 710 won, local education tax of 186, 79, and 860 won, and the part exceeding 862, 589, 960 won, urban planning tax of 308, 517, 330 won, local education tax of 172, 517, and 90 won is revoked.

2. The costs of the lawsuit shall be borne by the defendant.

Purport of claim

same as the text entry.

Reasons

1. Details of the imposition;

A. As of June 1, 2006, the Plaintiff is the owner of the hotel of this case, which is the Seoul Gangnam-gu Seoul Metropolitan Government - X X 18,403 mi (hereinafter “instant land”) and its ground building.

B. On September 22, 2006, the Defendant imposed and notified the Plaintiff on September 2, 2006 that property tax, urban planning tax, and local education tax [Attachment 1] calculated by applying each tax rate stipulated under Article 188(1)1 of the Local Tax Act to the land remaining (land annexed to high-class amusement grounds) subject to separate taxation; and that property tax, urban planning tax, and local education tax [Attachment 1] calculated by applying each tax rate stipulated under Article 188(1)1 of the Local Tax Act to the other land (land annexed to high-class amusement grounds) as indicated in the tax amount column for calculating the amount of tax (hereinafter the above property tax, urban planning tax, and local education tax imposition [Attachment 1] of the disposition imposing the property tax, urban planning tax, and the portion exceeding the local education tax

[Ground of recognition] Evidence No. 1-2, Evidence No. 1-2, Evidence No. 2-2, Evidence No. 1-2, and evidence No. 4-6

A. The plaintiff's assertion

Of the land of this case [Attachment 3] Reference 1, 5, 13 (excluding the hotel floor of this case, outdoor parking lot, and flower area of this case) 2 through 4, 6 through 12, 1, 405 m (hereinafter [Attachment 3] referring to "land of this case" according to its number. The specific area of this case 'the site of this case 2 to 4,6 through 12' is 'the site of this case'. The specific area of this case 'the private road of this case 'the private road of this case 'the site of this case' is subject to non-taxation pursuant to Article 186 subparagraph 4 of the Local Tax Act, Article 137 (1) 1 of the Enforcement Decree of the same Act, and Article 137 (1) 1 of the same Act 'the land of this case' is not subject to taxation of property tax of this case. It is not subject to taxation of property tax of this case.

(b) Related statutes;

No property tax shall be imposed on any of the following properties (excluding those subject to taxation pursuant to Article 112 (2)) provided for in Article 186 of the Local Tax Act: Provided, That this shall not apply to the property where it is used for profit-making business as determined by the Presidential Decree, where it is charged for a fee, or part of the property is not used directly for its original purpose:

4. Road, river, bank, bank, ditch maintenance, historic site, and cemetery site prescribed by Presidential Decree (non-taxation based on the classification of uses) Article 137 of the Enforcement Decree of the Local Tax Act (1) The term "road, river, bank, bank, bank, historic site, and cemetery" in subparagraph 4 of Article 186 of the Act means the land determined as follows:

1. Roads under the Road Act, and private roads opened for the purpose of contributing to the free passage of the general public;

Provided, That the vacant land in the site resulting from construction at a certain distance from the construction line or the boundary of an adjacent site pursuant to the provisions of Article 36 (1) of the Building Act shall be excluded.

Building Act

(1) The line to which a building is to be constructed (hereinafter referred to as the “building line”) in the part abutting on a road shall be determined by the border between the site and the road: Provided, That in the case of a road the width of which falls short of the required width under the provisions of subparagraph 11 of Article 2, the building line shall be the line set back from the centerline of such road the horizontal distance equivalent to one half of the required width cost, and in the case there is any slope, river, railroad, track site or others similar thereto on the opposite side of such road, the building line shall be the line at the horizontal distance equivalent to the required width from the road boundary line on the side where the relevant slope, etc. is located, and in the case of a corner of a road, the line as prescribed by the Presidential Decree, shall be the building line.

C. (1) The key issue of this case is the land of this case, which is located on the 6th seat of the hotel line 2, subway lines, the width of which is 50 meters from the Y station, and the land adjoining to the 2, 3, 6, and 7 square meters from the east of the 5th seat, and the land adjoining to the 4th seat of the 6th seat of the 7th seat of the 6th seat of the 7th seat of the 6th seat of the 6th seat of the 6th seat of the 6th seat of the 7th seat of the 6th seat of the 5th seat of the 6th seat of the 5th seat of the 6th seat of the 5th seat of the 5th seat of the 5th seat of the 5th seat of the 6th seat of the 6th seat of the 5th seat of the 5th seat of the 6th seat of the 1st seat of the 6th seat of the 1st seat of the 3rd.

(6) The construction line of the instant land is set at three meters from the road boundary line. Of [Attachment 3] Reference, the boundary line classified between the instant land and the instant land 11, 3, 9, and 7 is the construction line of the instant land.

[Ground of recognition] Gap evidence 3, Gap evidence 4-1 to 21, Gap evidence 5, 6, Gap evidence 7-1 to 10, Eul evidence 4, 5, and the video, the result of the on-site inspection by this court, the purport of the whole pleadings

【Dismissal Evidence】 Description of Evidence No. 3

D. Determination

(1) Whether "private roads" under the main sentence of Article 137 (1) 1 of the Enforcement Decree of the Local Tax Act falls under "private roads" (A) Article 186 subparagraph 4 of the Local Tax Act and the main sentence of Article 137 (1) 1 of the Enforcement Decree of the same Act, "private roads established for the purpose of contributing to the free passage of the general public" are not limited to the private roads opened with permission under Article 4 of the Private Road Act, and even if the private roads are established for the purpose of contributing to the free passage of the general public from the beginning for the purpose of providing them for the original specific purpose, the private roads are not subject to any restriction on the passage of the general public, and if they are actually used for the passage of many and unspecified persons, they are also included in all such private roads (see Supreme Court Decision 29Nu29456, Apr. 23, 1993; 2005Du8386, Aug. 28, 2005).

(B) In full view of all circumstances such as the actual conditions of use of the site of this case as seen earlier, connection status with the public map, surrounding circumstances, etc., the key site of this case plays a role as the passage of customers visiting and leaving the hotel of this case or the hotel of this case.

Even if it can be seen that a large number of unspecified people freely use the site as a whole without any restriction, the site in this case constitutes "private road" under the main sentence of Article 137 (1) 1 of the Enforcement Decree of the Local Tax Act. (2) Whether the site falls under "public notice (open space) within the site" under the proviso of Article 137 (1) 1 of the Enforcement Decree of the Local Tax Act (a) from among private roads subject to property tax exemption under the proviso of Article 137 (1) 1 of the Enforcement Decree of the Local Tax Act, the site in this case is excluded from non-taxation subject to property tax due to construction line under Article 36 (1) of the Building Act or construction with a certain distance from the boundary line of a neighboring site, but the property tax on the land is a profit-free property for which the capacity to pay taxes is recognized by attaching the expected profit-making of the land, and the land provided mainly to public interest or public interest under Article 137 (1) 1 of the Enforcement Decree of the Local Tax Act.

In light of the fact that the actual status of land is being used as a private road provided for free passage of the general public, it is difficult for landowners to exclusively and exclusively use and profit-making, which is subject to non-taxation, the purport of the proviso of Article 137(1)1 of the Enforcement Decree of the Local Tax Act that excludes the "open area within the site" from non-taxation. The purport of the proviso of Article 137(1)1 of the Enforcement Decree of the Local Tax Act is that the owner of the site must keep a distance from the construction line or the boundary of the site in accordance with the relevant provisions, such as the Building Act, etc. for the purpose of maintaining the opening and stability of the building owned by the site owner and attracting customers, such as where he/she arbitrarily provides it as a method of use and profit

Since it is reasonable to view that it is premised on the possibility of exercising Eul's right, the current state of use of the public road, developments leading up to the creation of private road, possibility of exclusive use by the site owner, etc., in a case where the site owner has no public passage way available to the general public around the site owned by him or it is inevitable to provide such public notice as a passage to many and unspecified persons due to lack of public passage, and where there is no possibility of exclusive use and profit-making of such public notice, it shall not be deemed that such public notice falls under "public notice within the site" under the proviso of Article 137 (1) 1 of the Enforcement Decree of the Local Tax Act (see Supreme Court Decision 2002Du2871, Jan. 28, 2005). (b) On the premise of the above legal principle, even if the site in this case falls under the exclusive use of the site in this case without any possibility of the plaintiff's exclusive use of the site in this case, it cannot be viewed that it falls under the exclusive use of the site in this case.

C) Therefore, the instant disposition, based on the premise that the instant site falls under the “public notice within the site” under the proviso of Article 137(1)1 of the Enforcement Decree of the Local Tax Act, is excluded from the subject of property tax exemption, is unlawful, and the Plaintiff’s assertion is with merit.

(e) Justifiable tax amount;

According to the evidence mentioned above, the legitimate tax amount at the time of the instant site subject to non-taxation of property tax is as stated in [Attachment 1]’s legitimate tax calculation table.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is justified and it is so decided as per Disposition with the assent of all participating Justices.