(a) Criteria for determining whether real estate for non-business use under the Corporate Tax Act is located;

B. Whether the buildings stipulated in Article 18 (3) 2 (a) of the former Enforcement Rule of the Corporate Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 1818 of Apr. 4, 1990) refer only to legitimate buildings

A. Unlike Article 84-4(1) and (3) of the Enforcement Decree of the Corporate Tax Act, Article 18(3) of the Enforcement Rule provides that "justifiable cause" shall be separately listed in a corporation's real estate for non-business use as an exception to land for non-business use in cases where such real estate is not used directly for its unique business without justifiable grounds under each of the provisions of Article 84-4(1) and (3) of the Enforcement Decree of the Corporate Tax Act, unlike the general exceptions to land for non-business use. Thus, Article 18(4) of the Enforcement Decree of the Corporate Tax Act provides that the real estate used directly for corporate business shall be determined as real estate for non-business use unless there is a ground for exception under each subparagraph of Article 1

B. Under the principle of no taxation without law, it is not permitted to expand or analogically interpret the taxation requirements, non-taxation requirements, or tax exemption requirements, and thus, it cannot be interpreted that only a legitimate building means a building without stipulating the purport of excluding any unauthorized and unlawful building specifically in Article 18(3)2 Item (a) of the former Enforcement Rule of the Corporate Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 1818, Apr. 4, 190) or Article 6 of the Industrial Placement Act.

(a) Article 18(3) and (4) of the Enforcement Rule of the Corporate Tax Act; Article 18(3)2(a) of the former Enforcement Rule of the Corporate Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 1818 of Apr. 4, 190);

Seowon Industrial Co., Ltd., Counsel for the plaintiff-appellant

The director of the tax office.

Seoul High Court Decision 91Gu28223 delivered on May 18, 1993

All appeals are dismissed.

The costs of appeal shall be assessed against each party.

1. We examine the Plaintiff’s grounds of appeal.

On the first ground for appeal

Article 66 of the Regulation of Tax Reduction and Exemption Act, Article 54 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13202 of Dec. 31, 190) and Article 20-2(1)2 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1822 of Apr. 10, 1990) provide that real estate falling under Article 18(3)2 through 13 of the Enforcement Rule of the Corporate Tax Act shall not apply to real estate which is not directly related to the business of the juristic person and is not directly related to the business of the juristic person, and Article 18(3) of the Enforcement Rule of the Corporate Tax Act provides that Article 84-4(1) and (3) of the Enforcement Rule of the Corporate Tax Act provides that "justifiable cause" shall be listed individually for non-business property, and it shall be listed separately for non-business property under paragraph (4) of the same Article.

Therefore, even if a real estate is used directly for a corporation's business, if it falls under any of the subparagraphs of Article 18 (3) of the Enforcement Rule of the Corporate Tax Act, the real estate concerned shall be judged as a non-business real estate unless there is a reason for exception under paragraph (4), and the existence of a justifiable reason shall not be an exception to determining whether it constitutes non-business real

Since the plaintiff has justifiable grounds that the part of the land exceeding the standard factory area among the land of this case is not constructed, the part of the land exceeding the standard factory area should not be regarded as non-business real estate. However, this shall not be accepted since it is argued by the misunderstanding of the provisions concerning the exceptional reasons for non-business real estate determination under the Corporate Tax Act. The argument is without merit.

On the second ground for appeal

In the special surtax (or transfer income tax), since the fact of taxation requirements is transferred, the laws at the time of transfer should be applied, and the decision of retroactive taxation should be based on the time of transfer.

Therefore, as in the case of this case, even if the taxation requirement at the time of transfer was increased more than the time of acquisition due to the revision of the Ministry of Trade, Industry and Energy’s notice on the standard factory area ratio, the defendant, who is the tax authority, should impose special surtax by applying the taxation requirement at the time of transfer. Thus, this cannot be viewed as a violation of the

2. We examine the defendant's grounds of appeal.

In light of the principle of no taxation without law, it is not allowed to expand or analogically interpret the taxation requirements, non-taxation requirements, or tax exemption requirements, and thus, it cannot be interpreted that only a legitimate building means a building, without stipulating the purport of excluding any unauthorized and unlawful building in particular under Article 18(3)2(a) of the former Enforcement Decree of the Corporate Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 1818, Apr. 4, 190; hereinafter the same shall apply) or Article 6 of the Industrial Placement Act.

In light of the fact that Article 18 (3) 2 (a) of the current Enforcement Rule of the Corporate Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 1818 of Apr. 4, 1990) provides that the area exceeding the standard area for factory sites under Article 84-4 (3) 6 of the Enforcement Decree of the Local Tax Act shall be non-business land, and according to Article 84-4 (3) 6 of the Enforcement Decree of the Local Tax Act and attached Table 4 of the Enforcement Rule of the same Act, Article 46-5 of the Enforcement Rule of the Local Tax Act provides that buildings without permission and illegal shall be excluded from the construction area, even in the case of Article 18 (3) 2 (a) of the Enforcement Rule of the Corporate Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 18

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)