(영문) 부산지방법원 2016.9.1.선고 2016구합21016 판결

The defendant's rejection disposition of correction of KRW 3,109,916,495 of acquisition tax against the plaintiff on January 7, 2015 and KRW 310,91,641 of local education tax shall be revoked.

Reasons

1. Basic facts

A. On March 9, 2005, the head of Busan Metropolitan City: (a) designated and publicly announced the 3,638,310 square meters of the Dongsan-gun, Busan-gun as the site for the Dong Busan-gun tourism complex (Public Notice No. 2005-69); (b) on April 5, 2006, the head of Busan Metropolitan City approved the tourism complex development plan submitted by Busan Urban Corporation (Public Notice No. 2006-124 of Busan Metropolitan City Public Notice No. 2006-124); and (c) on July 23, 2014, the head of Busan Metropolitan City changed the plan for the development of the Dongsan-gun Tourist Complex (Public Notice No. 2014-320

B. Around 2012, the Plaintiff submitted a project proposal to the Busan Urban Corporation to build and operate sales facilities (combined shopping mall) in the Busan Urban Complex by means of a general investment proposal. The Busan Urban Corporation adopted the Plaintiff’s project proposal.

Accordingly, on March 14, 2013, in order to build a shopping mall (hereinafter referred to as "the shopping mall of this case"), the Plaintiff entered into a contract for the purchase of land (hereinafter referred to as "the land of this case") with 119,597,45,000 won from the Busan Urban Corporation for the purchase of the land (hereinafter referred to as "the land of this case") as stated in the table 1 below in Busan Urban Complex, Busan Urban Complex.

(Voting 1)

A person shall be appointed.

C. On December 6, 2013, the Plaintiff submitted a project plan to the effect that from the Busan Urban Corporation, the Plaintiff purchased the same land as indicated in Table 2 below (hereinafter referred to as “the land No. 2”, and the sum of the land No. 1 and 2 in the instant case is referred to as “each land of this case”) and build and operate the parking lot.

Table 2

A person shall be appointed.

D. On December 23, 2013, the Busan Urban Corporation selected the Plaintiff as a potential concessionaire. On February 20, 2014, the Plaintiff entered into a contract on the purchase of land No. 2 from the Busan Urban Corporation to purchase KRW 34,521,00,000 to build a new parking lot connected with the complex shopping mall.

E. On July 23, 2014, the Plaintiff reported and paid acquisition tax of the instant land No. 1,842,091,370 won, local education tax of KRW 484,209,130, and special agricultural and fishing villages tax of KRW 242,104,560, and KRW 5,568,40,560. On September 24, 2014, the Plaintiff reported and paid acquisition tax of the instant land No. 2, which was KRW 1,377,741,620, local education tax of KRW 137,77,74,774,160, and special agricultural and fishing villages tax of KRW 68,87,40,00, and KRW 1,584,40,02, and KRW 5860,000, the Plaintiff installed the instant parking lot with the approval of temporary use of the instant land of KRW 12,441,875.24.

G. On December 19, 2014, the Plaintiff filed a claim with the Defendant for reduction of 50/100 of the acquisition tax and local education tax already reported and paid by applying the main sentence of Article 4(2) of the Busan Metropolitan City Tax Reduction and Exemption Ordinance (amended by Ordinance No. 5034, Jul. 9, 2014) (hereinafter “instant mitigation provision”) on each of the instant land. However, the Defendant rendered a disposition rejecting all the Plaintiff’s request for correction on January 7, 2015 on the ground that each of the instant land cannot be deemed land for the purpose of multiple shopping mall suitable for the commercial establishment district in the Dongsan Tourist Complex, on the ground that the land for which the instant request for correction was filed by the Tax Tribunal on April 7, 2015, but the said request for correction was dismissed on April 12, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 13 (including, if any, a serial number; hereinafter the same shall apply), Gap evidence Nos. 15, 16, 17, and 21, and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

(i) the first argument;

Since the instant parking lot falls under the parking lot under subparagraph 1 (a) of attached Table 18 (hereinafter referred to as the “attached Table”) of the Enforcement Rule of the Tourism Promotion Act for the following reasons, 50/10 of the acquisition tax and local education tax already reported and paid by the Plaintiff concerning the land of this case pursuant to the mitigation clause of this case shall be reduced.

① The instant parking lot is operated in the form of free provision for general tourists as well as shopping mall users in the instant case.

② Of the instant land No. 2, P6 block land was planned from the beginning as the “parking lot of public convenience facility zone” in accordance with the development plan for the East Busan Tourist Complex and the district unit planning, and the instant 4 block land was designated as the “theme shopping mall of the East Busan Tourist Complex Development Plan and the district unit planning,” but the Plaintiff submitted a business plan to use the said land for the purpose of the “parking lot” to Busan Urban Corporation, and the Plaintiff actually used it as the parking lot. Therefore, it is obvious that the actual use of the said land is the parking lot.

③ Since most of the parking lots installed as public convenience facilities in the Dongsan Tourist Complex are sold at a cost to the private business operators and operated in accordance with the business plan of the private business operators concerned, the fact that the instant parking lot is operated by the plaintiff who is the private business operator cannot be viewed as not falling under the “public convenience facilities.”

(ii) the second argument;

The shopping mall of this case and the parking lot of this case fall under support facilities (distribution-related facilities) under subparagraph 1 (f) of attached Table 1 of this case on the following grounds, and 50/100 of the acquisition tax and local education tax paid by the Plaintiff on each land of this case shall be reduced.

① Article 2 of the U.S. Industrial Development Act defines the distribution industry as ‘distribution industry' as ‘agricultural products, livestock products (including processed products and cooked products), and public products, and stores, shipping, and packaging to operate them, and industries for the provision of information and services related thereto,’ and regulates ‘sale' or ‘large store' as facilities for the distribution industry. In light of the language of distribution facilities or the definition of the distribution industry pre-sale law, distribution facilities include sales stores such as shopping mall in this case.

② The instant attached Table 19 sets abstractly and generally the facilities installed in a tourism complex prior to the designation as a tourism complex, and the attached Table 19 of the Enforcement Rule of the Tourism Promotion Act sets it more specific and detailed, and it is apparent that the facilities for commercial buildings fall under the distribution facilities in accordance with the attached Table 19.

③ The Tourism Promotion Act, which reflects the essential function of shopping in order to revitalize a tourism complex, sets the area of a shopping complex as an important part within a tourism complex. It is clear that a tourism complex equipped with a large shopping mall makes it easy to attract tourists and expect that a tourism complex can be activated as a whole. Therefore, the shopping mall in this case constitutes a support facility necessary to revitalize the function of a tourism complex.

④ In light of the legislative intent of the mitigation clause of this case, “to reduce acquisition tax and registration tax to facilitate private investment in tourism complex development projects requiring large financial resources”, acquisition tax reduction shall be applied to the shopping mall of this case and the parking lot of this case.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) Facts of recognition

(1) Among each of the instant lands, a multi-four block part among the instant lands is a multi-use shopping mall in a shopping mall in a shopping mall facility district and a district unit plan: The permitted purpose is: Sales facilities, first class neighborhood living facilities, second class neighborhood living facilities, second class neighborhood living facilities, subsidiary use: cultural and assembly facilities, and amusement facilities. The P6 block part among the instant land 2 is a parking lot in a public convenience facility district.

(2) Article 8 of a sales contract for each land of this case shall be a parking lot, etc. under a creation plan.

While the creation and provision are prescribed as the role of Busan Urban Corporation, there is no provision that allows the plaintiff to provide separate support facilities (including parking lots) to the plaintiff in the Dongsan Tourist Complex.

③ Article 2(1) of the Land Sale Contract for the Second Land provides that the details of the project and facilities shall be based on the business plan proposed by the Plaintiff. Article 17(1) of the same Act provides that the Busan Urban Corporation and the Plaintiff may implement the development plan by adjusting the details of the approval of the development plan and the district unit plan through consultation.

(4) The main contents of the project proposal for the land No. 2 of this case (a development company for commercial facilities in the Dong Mine Complex) are as follows:

- [Business Plan 1-1. Development Objectives and Strategy - Analysis and understanding of Business Conditions - Interest of Tourism Complex in the East Busan Metropolitan Area] - The current status of facility site in the part of the multi-4 block section - parking lot 'parking lot' in the column for the use of the multi-4 block section - the off-road parking lot in the area and the column for use of the P6 block section 'public convenience facility zone' is added to the introduction facility column 'Dong Busan Metropolitan Area and the above block section 29,513m (8,928m) of the combined shopping mall parking lot '.'

- [Business Plan 1 1-1. Development Objectives and Strategy - Analysis and understanding of Business Conditions - Necessity of securing annexed parking lots] include the following: ‘The necessity to actively cope with parking problems anticipated according to the open area of the Dong Busan Complex (2 December 14)' and ‘the increase in satisfaction of tourist complex/ shopping mall users due to the reduction of air time'.

- [Business Plan 1 - 2. Building Plan - 3.1 Introduction Facility Management and Operation Plan - Detailed Operation Plan] column, the instant parking lot operation plan described in the column is as follows:

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap's evidence 9, 10, 13, 15, Gap's evidence 17 through 20, Eul's evidence 5 and 6, the purport of the whole pleadings

2) Relevant legal principles

In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws is to be interpreted in accordance with the text of the law, barring any special circumstance, and it is not allowed to expand or analogically interpret without reasonable grounds, and in particular, it is also consistent with the principle of fair taxation to strictly interpret that the provision is clearly considered as a preferential provision among the requirements for tax exemption or exemption (see, e.g., Supreme Court Decision 97-20090, Mar. 27, 1998).

3) In full view of the following circumstances acknowledged as a whole based on the facts admitted as above and the overall purport of arguments as to the first argument, the instant parking lot cannot be deemed as a “parking lot” under the mitigation clause of the instant case and the attached Table.

① In light of the contents and purport of the above provision, the "parking lot, which is a public convenience facility in the attached Table 1(a) of this case, refers to a parking lot for tourists visiting a tourist complex, as a public facility for tourists visiting the tourist complex, in light of the contents and purport of the above provision.

② However, in light of the contents of the land sales contract and the business plan regarding the land No. 2 as seen earlier, it is determined that the main purpose of the instant parking lot is both the part indicated as the exclusive parking lot for shopping mall and the part indicated as the general parking lot for customers of the shopping mall, which is a commercial facility, and even if the instant parking lot contributed partially to the increase in the convenience and satisfaction of tourist users, it is merely an indirect incidental effect due to the construction of the instant parking lot, which is the attached parking lot for shopping mall.

③ The Plaintiff appears to be managing and operating the instant parking lot in an integrated manner without distinguishing the current parking lot, and even according to the contents of the said business plan, it is difficult to conclude that the instant parking lot has the character as a public facility for tourists visiting a tourist complex solely on the ground that the Plaintiff provided all or part of the instant parking lot to persons other than customers free of charge.

(4) Article 8 of the Land Sales Contract for each of the instant lands provides that the creation and provision of other public convenience facilities, such as parking lots, under the development plan, etc. shall be the role of the Busan Urban Corporation. However, there is no provision that grants the Plaintiff the duty or role of providing separate support facilities (including parking lots) in each of the above contracts. Thus, there is no ground for compelling the Plaintiff to provide all or part of the instant parking lot for tourists other than customers using shopping mall.

Therefore, this part of the plaintiff's assertion is without merit.

4) In full view of the following circumstances and the overall purport of the arguments as to the second assertion, the shopping mall of this case and the instant parking lot of this case cannot be deemed as supporting facilities ("distribution-related facilities") that are subject to mitigation under the mitigation clause of this case and the attached Table of this case, comprehensively taking into account the aforementioned facts acknowledged and the entire purport of the arguments as seen above, and the various circumstances as seen in

① The instant attached Table (f) and Article 2 subparag. 10 of the Tourism Promotion Act stipulate that all of the supporting facilities shall be facilities needed to promote the management, operation, and functions of tourism complexes. The instant attached Table (f) lists “tourist employees-only accommodation, tourism employees-only accommodation, and training facilities” along with logistics and distribution-related facilities for each type of supporting facilities. The instant shopping mall is a sales facility established by the Plaintiff in a shopping district for the purpose of creating economic profits, even if such sales facilities fall under the “distribution facilities” under Article 2 of the Distribution Industry Development Act, it is difficult to view that it is necessary to revitalize the management, operation, and functions of the tourism complex, such as tourist employees-only accommodation or tourism employees-only training facilities specified as the example of the “support facilities” under the attached Table of this case.

② The instant provision provides for the facilities under subparagraph 1 (a) through (f) of the instant attached Table due to the reduction or exemption thereof, but does not provide for the sales facilities that can be installed within the commercial facility district under attached Table 19 of the Enforcement Rule of the Tourism Promotion Act.

③ In order to use the shopping mall of this case, it is reasonable to view that the circumstances such as tourists’ visits to the Dongsan Tourist Complex or tourism workers, etc. may be provided with goods necessary for the shopping mall of this case are only indirect and incidental effects arising from the establishment of the shopping mall of this case, which is a sales facility.

10. Article 64(1) of the Tourism Promotion Act provides that "Any project operator may have a user share all or part of the construction costs of support facilities as prescribed by Presidential Decree." Paragraph (2) provides that "if any construction or act which causes the construction of support facilities exists, a project operator may have a person who shall bear the expenses of such construction or act bear all or part of such expenses, as prescribed by Presidential Decree." Paragraph (1) of Article 53 of the Enforcement Decree of the Tourism Promotion Act provides that "Where a project operator intends to impose a charge on users of support facilities pursuant to Article 64(1) of the Act, he/she shall specify the name of the construction project of support facilities, construction costs, amount to be borne, method of payment and payment in writing, and demand the user to pay the charges." In addition, it seems that there is no agreement on the construction or contribution of each land of this case on the site sales contract of support facilities, including the above subsidization, construction costs, or other charges.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the name of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.