Cho High Court Decision 2008Do0279 (No. 18, 2008)
Since part of real estate for entertainment taverns is acquired, acquisition tax is levied more than five times the general tax rate.
Article 112 of the Local Tax Act [Tax Rate] / Scope of and standards for application for model theaters under Article 84-3 of the Enforcement Decree of the Local Tax Act
I dismiss the appeal.
1. Summary of disposition;
A. After an applicant acquires an OOOO OOOOO or a 1,734.52 square meters of buildings 1,734.52 square meters of land annexed thereto, from May 3, 2007 to 1,875.2 square meters of land annexed thereto, non-claim OO (OOOOO or a OO or a 2002.5 square meters of land in Gyeonggi-do) has been operating entertainment tavern (OOO or a OO or a 1.36 square meters of land; hereinafter referred to as “this real estate”), the acquisition tax of 00 won, 300 won, 1.64 square meters of land, 1.36 square meters of land; hereinafter referred to as “the real estate”), 200 won, acquisition tax of 00 won, 2008 won, 300 won, acquisition tax of 200 won, 300 won, 2008 won, 3008 won, acquisition tax base of real property.
B. However, the claimant paid only registration tax (including local education tax) on December 12, 2007 on the date of filing a report on acquisition, and completed the registration of ownership transfer, but in the disposition agency that did not pay acquisition tax, it imposed and collected acquisition tax, 3,849,020 won, special rural development tax, 384,90 won, total amount of 4,23,920 won, calculated including additional tax for arrears under Article 121(1)2 of the Local Tax Act.
C. The appellant filed an appeal on March 20, 2008 on the ground that the acquisition tax rate on the entertainment bar house is too high.
2. Opinions of the claimant and disposition agency;
A. The claimant's assertion
Since this real estate was acquired in KRW 38,000,00, but acquisition tax on real estate for high-class recreation centers was entirely acquired without knowing the fact that acquisition tax is levied more than five times the general tax rate, this disposition of imposition and collection of acquisition tax is unfair.
(b) Opinions of disposition agencies;
Since an appellant acquired real estate for an entertainment drinking house with a permission for an entertainment drinking house (studio) with a share of it, it is legitimate to impose heavy taxation on 5 times (1,00/1,000) of the general tax rate (20/1,00) as provided in Article 112 (2) of the Local Tax Act.
3. Hearing and determination
(a) Points in dispute;
Whether it is legitimate to levy acquisition tax on five times the general tax rate (20/1,000) where an entertainment drinking club member has acquired a share in an entertainment drinking club in business
(b) Related statutes;
(1) The standard tax rate for acquisition tax shall be 20/1,000 of the value of acquired article or annual installments.
(2) Acquisition tax rates in cases of acquiring real estate, etc. falling under any of the following subparagraphs (including cases of acquiring a portion of a villa, etc. by dividing it) shall be 500/100 of the tax rates listed in paragraph (1). In such cases, the same shall apply not only to cases where golf courses are registered (including cases of registering an alteration by expanding facilities; hereafter the same shall apply in this paragraph) but to cases where golf courses are used as de facto golf courses without registration, and where the boundary of land attached to any villa or high-class recreation center is unclear, the land equivalent to ten times the floor area of the building shall be deemed land annexed thereto:
4. High-class recreation centers: Buildings and land attached thereto as determined by the Presidential Decree among buildings used for casinos, amusement and tavern quarters, special bathing rooms or other similar purposes;
Article 112-2 of the Local Tax Act [Application of the tax rate] (1) Where the relevant land or building falls under any of the following subparagraphs within five years after the land or building is acquired, acquisition tax shall be additionally collected by applying the tax rate stipulated in the provisions cited in the following subparagraphs:
1.A villa, golf course, high-class house or high-class recreation center pursuant to the provisions of paragraph 2 of Article 112;
Article 84-3 of the Enforcement Decree of the Local Tax Act provides that “The scope and applicable standards of Article 84-3 of the Enforcement Decree of the Local Tax Act shall be the buildings and land attached thereto used for the purpose falling under any of the following subparagraphs.” In this case, where a high-class recreation center is established in part of a building, land equivalent to the ratio of the total floor area of the building for high-class recreation center to the total floor area of the building shall be considered as the land attached to the building:
5. Places of business falling under any of the following items, excluding a tourist entertainment restaurant (limited to those located within a tourist hotel, which are designated by the Minister of Culture and Tourism, in the case of a tourist restaurant business) designated under Article 6 of the Tourism Promotion Act, from among the places of business falling under any of the following items. In this case, where a designation as a tourist entertainment restaurant is made under Article 6 of the Tourism Promotion Act within 30 days from the date on which an entertainment tavern business license is granted under the Food Sanitation Act,
(b) Such other entertainment entertainment business places as room-gu or restaurants with guests (including those not on the regular payroll) may provide entertainment services, and with a semi-permanently partitioned guest room space exceeding 50/100 of the total floor space (limited to the exclusive use area) or five or more guest rooms: Provided, That it is limited to such business places (including the common use area.) in excess of 100 square meters in total; and
C. Facts and determination
(1) On December 4, 2007, the claimant acquired 257 square meters (7.64 square meters and 1.36 square meters in land) of 1,734.52 square meters (70 square meters in exclusive use area, 739.7 square meters in exclusive use area, 50 individual owners) of OOOOOO in Gyeonggi-do, OOOOOOOOOO under 207, and the claimant's agent (OO) acquired 257 square meters in this case's real estate constitutes an entertainment drinking house, which is a high-class recreation center under Article 84-3 (4) 5 (b) of the Enforcement Decree of the Local Tax Act, and filed a report on acquisition by applying the heavy taxation rate, and paid the registration tax on the date of the report, but did not pay the acquisition tax, it can be seen from related evidence.
She have acquired real estate for high-class recreation centers without knowing that acquisition tax is levied more than five times the general tax rate.
Article 112 (2) 4 of the Local Tax Act and Article 84-3 (4) 5 (b) of the Enforcement Decree of the same Act, and land annexed thereto, mean an entertainment drinking house business under the Food Sanitation Act, which is an entertainment drinking house business and a lodging room business (including those not employed on the regular basis) with amusement, and the area of guest rooms partitioned semi-permanently and semi-permanently, exceeds 50/100 of the area of the place of business (limited to the exclusive use area) or five or more guest rooms, and the area of the place of business (including the common use area) exceeds 100 square meters. The land or building falls under any of the following subparagraphs within five years after it is acquired under Article 112-2 (1) of the same Act, shall be collected by applying the tax rate as cited in each of the following subparagraphs:
In light of the fact that the real estate acquired by the claimant and the non-claim OOO (OOO of Gyeonggi-do OOOOO) is operated by entertainment taverns (OOOO No. O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O) from May 3, 207, the ownership of the entertainment drinking club is acquired under the status of entertainment taverns.
This case's request for adjudication is without merit, so it is decided as ordered by Article 77 (5) of the Local Tax Act and Articles 65 (1) 2 and 81 of the Framework Act on National Taxes.
July 17, 2008