The case holding that a land for a substation acquired without obtaining approval from the competent Minister pursuant to the proviso of Article 5 (1) of the former Act on Special Cases concerning Electric Source Development and Article 13 (2) of the Enforcement Decree of the same Act constitutes land subject to separate taxation under Article 194-15 (4) 5 of the former Enforcement Decree of the Local Tax Act.

Article 234-15 (2) 6 of the former Local Tax Act (amended by Act No. 732 of Jan. 5, 2005) (see current Article 182 (1) 3 (d)), Article 194-15 (4) 5 (see current Article 132 (4) 5) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 18194 of Dec. 30, 2003), Article 5 (1) of the former Special Act on Electric Source Development (amended by Act No. 7016 of Dec. 30, 2003), Article 13 of the former Enforcement Decree of the Special Act on Electric Source Development (amended by Presidential Decree No. 15363 of May 1, 1997)

Korea Electric Power Corporation (Attorney Jeong Jae-hun, Counsel for defendant-appellant)

Head of the Daegu Metropolitan City Month and four others (Law Firm Han-ro et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 2005Nu1542 Decided December 30, 2005

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined (to the extent of supplement in case of any statement in the grounds of appeal not timely filed).

1. Whether the land in this case constitutes a land subject to exclusion from approval by the competent Minister under the proviso of Article 5 (1) of the Act on Special Cases concerning Electric Source Development;

Article 5(1) of the former Act on Special Cases Concerning Electric Source Development (amended by Act No. 7016, Dec. 30, 2003; hereinafter “Special Act”) provides that “electric source developer shall prepare an execution plan for electric source development business and obtain approval from the Minister of Trade, Industry and Energy (the Act on Special Cases Concerning Electric Source Development is amended several times, but the name of the competent Minister has been changed, and the substantial contents have not been changed, although Article 5(1) is amended several times, this provision shall not apply to electric source development business as prescribed by the Presidential Decree.” Accordingly, Article 13 of the former Enforcement Decree of the former Act on Special Cases Concerning Electric Source Development (amended by Presidential Decree No. 15363, May 1, 199; hereinafter “Enforcement Decree of the Special Act”) provides that “electric source development business conducted within the electric source development business area” in subparagraph 1 without obtaining approval from the competent Minister, and Article 6(1)2 of the Act provides that “electric source development business does not require approval from each subparagraph 1.”

A. Determination as to the site for a macks transformation station

In light of the fact that the provision of Article 13 subparagraph 1 of the Enforcement Decree of the Act on Special Cases Concerning the Development of Electric Source(the enforcement date: January 1, 1979) is the same content from the time when the Act on Special Cases Concerning the Development of Electric Source(the enforcement date: January 1, 1979), the term "existing Electric Source Equipment Area" under the above provision means the area where the electric source equipment

According to the reasoning of the judgment of the court below, the court below held that the land used by the above company as a site for a substation from the non-party Hanym Textiles Industrial Co., Ltd. prior to the enforcement of the Act on Special Cases Concerning Electric Source Development constitutes land that can be acquired without obtaining approval from the competent Minister under Article 13 subparagraph 1 of the Enforcement Decree of the Act on Special Cases Concerning Electric Source Development. In light of records and relevant statutes, the fact-finding and decision of the court below is just, and there is no violation of law such as

B. Determination as to the remainder of a substation site other than a macks transformation station

Article 13 subparag. 2 of the Enforcement Decree of the Act on Special Cases Concerning the Development of Electric Resources only stipulates that "electric source development business which does not require authorization, permission, etc. under the provisions of each subparagraph of Article 6(1) of the Act, and does not limit it to electric source development business which does not require authorization, permission, etc. under the provisions of each subparagraph of Article 6(1) of the Act from the beginning of the Act to electric source development business, as well as electric source development business which does not require any authorization, permission, etc. under the provisions of each subparagraph of Article 6(1) of the Act on Special Cases concerning the Development of Electric Resources, among authorization, permission, etc. under the provisions of each subparagraph of Article 6(1) of the Act on Special Cases, if it is necessary to obtain any specific authorization, permission, etc. related to the business, it shall include electric source development business which can be deemed that

According to evidence duly examined by the court below and the court below, it is justified that the remaining land for the substation is the land of this case except for the land for the land for the inspection substation, and that of this case, it does not constitute a new site for the electric power resource development business under Article 6 (1) 1 of the Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200), the Housing Site Development Promotion Act (amended by Act No. 5109 of Dec. 29, 195), the Industrial Sites and Development Act (amended by Act No. 5453 of Dec. 13, 197), and the Local Industrial Development Promotion Act (amended by Act No. 4216 of Jan. 13, 1990), and it does not constitute a new site for the electric power resource development business under Article 6 (1) 1 of the Enforcement Decree of the same Act, and the court below's ground of appeal stating that it does not constitute an inappropriate ground of appeal No. 12 or 2 of this case.

2. Whether the land of this case falls under the land subject to separate taxation

Article 234-15 (2) of the former Local Tax Act (amended by Act No. 732 of Jan. 5, 2005) provides for the comprehensive aggregate tax base of aggregate land tax, and provides for one of the items excluded from the tax base, “the value of the land prescribed by Presidential Decree as having considerable reasons for separate taxation of aggregate land tax,” and accordingly, Article 194-15 (4) 5 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 18194 of Dec. 30, 2003; hereinafter the same shall apply) provides that “the land directly used by the electricity supplier under the Electric Utility Act for power generation facilities or power transmission and transformation facilities (including the land acquired before the enforcement of the Act on Special Cases Concerning Electric Source Development, which is directly used for power generation facilities or power transmission and transformation facilities within the warning area partitioned by the fence, wire network, etc.” (including the land acquired before the enforcement of the Act on Special Cases Concerning Electric Source Development) shall be subject to separate taxation.

According to the reasoning of the judgment below, the court below held that in light of the purport of the separate taxation system under which a public corporation uses or owns land for the purpose of public interest, and the purport of Article 194-15 (4) 5 of the former Enforcement Decree of the Local Tax Act, "land acquired prior to the enforcement of the Act on Special Cases concerning Electric Source Development, which is directly used for power generation facilities or power transmission or transformation facilities within a boundary district partitioned by wall, steel-processing network, etc., or land subject to separate taxation under Article 194-15 (4) 5 of the former Enforcement Decree of the Local Tax Act", and the legislative purport of the Act on Special Cases concerning Electric Source Development, which is enacted to allow an electric power resource developer to promote electric power resource development business more efficiently by simplification of various procedures such as authorization and permission for electric power resource development business, the tax authority is just in holding that the plaintiff of the public corporation is subject to separate taxation under Article 194-15 (4) 5 of the former Enforcement Decree of the Local Tax Act without obtaining approval from the competent Minister for the supply of power to general consumers.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)