Dongyang Industrial Co., Ltd. (Attorney Choi Jong-soo, Counsel for the defendant-appellant)

Head of Seo-gu, Busan Special Metropolitan City (Attorney Han-dae, Counsel for defendant-appellee)

February 17, 1981

The plaintiff's claim is dismissed.

Litigation costs shall be borne by the plaintiff.

The defendant's disposition of imposing 137,315,165 won (acquisition tax 119,404,492 won, such additional dues as 11,940,449 won and the aggravated additional dues 5,970,224 won) for the plaintiff on September 10, 1979 shall be revoked.

Litigation costs shall be borne by the defendant.

(1) If the statements in Eul evidence Nos. 1 through 3, 9, and 12, which have no dispute over the establishment, show the whole purport of the pleading, the plaintiff company imported 5 ready-mixed vehicle vehicles from Japan through the Incheon Customs office on August 19, 1978, and voluntarily paid the acquisition tax on September 12, 1978, the plaintiff company completed its registration and paid it to Sam-gun, which has the factory of the plaintiff company, and on October 2 of that year also registered the transfer of the vehicle to Busan Metropolitan City where the factory of the plaintiff company is located. Accordingly, the defendant applied heavy taxation rate to "the case where the plaintiff acquires a taxable object for business to extend a factory in a large city" pursuant to Article 112 (3) of the Local Tax Act and applied heavy taxation rate to the plaintiff on September 10, 197 after deducting the tax already paid according to the general tax rate and imposing additional tax of KRW 119,404,492 for the plaintiff as of September 10, 1979>

(2) The plaintiff's first acquisition of the second half of the year after August 19, 199, and the last day of October 2 of the year after 44th of that year, was merely a mere registration of transfer without the change of the owner of the road in Busan Metropolitan City and Busan Metropolitan City. Thus, this cannot be viewed as an acquisition under Article 105 (1) of the Local Tax Act. Second, the plaintiff company's construction of manufacturing facilities of ready-mixed on June 1978 and commencement of manufacturing and selling business of ready-mixed, and added ready-mixed business other than the mentor portion of the mentor. The former Local Tax Act prior to December 31, 1978, which operated a ready-mixed manufacturing business is not a factory listed in Article 47-2 of the former Enforcement Rule of the Local Tax Act, and thus, it does not constitute a heavy-taxable factory in a large city, and thus, it must be revoked since the defendant's above imposition of acquisition tax against the plaintiff.

(3) Even if the plaintiff filed a request for review with the Minister of Home Affairs on December 14, 1979 and notified the extension thereof, the defendant should file a lawsuit for this case until February 27, 1980 and March 28 of the same year. Since it is evident that the lawsuit for this case was filed on April 4 of the same year after the seven days have passed since it had not passed since it must be dismissed as a matter of course because it did not go through legitimate transfer requirements, according to the statement of evidence Nos. 23 through 25, which is alleged by the defendant, the plaintiff company received a request for review from the Minister of Home Affairs on December 14, 1979, and the Minister of Home Affairs notified the Minister of Home Affairs of the extension on January 5, 1980, which is 30 days or less, and the defendant's request for correction can not be accepted within the period of 30 days prior to the date of review and decision. Accordingly, the defendant's request for correction can not be accepted within the period of 4 days prior to the date of review.

(4) Furthermore, according to Article 112 (3) of the Local Tax Act, the acquisition of commercial taxable objects for the construction or extension of a factory in a large city as determined by the Presidential Decree shall be subject to heavy taxation. According to Article 104 subparagraph 8 of the same Act, the acquisition means acquisition without compensation, such as sale, exchange, donation, acquisition by succession, or all acquisition without compensation. In light of the purport of the above Article 104, 55 vehicles owned by the plaintiff company are imported from Japan and transferred to Gangwon-do after completion of registration, and the right of taxation is transferred to the Busan Metropolitan City for the purpose of using the above factory. Thus, if the plaintiff company acquired 20 days after completion of registration at the Busan Metropolitan City and Busan Metropolitan City, the right of taxation is not subject to heavy taxation, and it cannot be accepted in the case of the plaintiff company's transfer within 10 days after completion of registration at the plaintiff company's Busan Metropolitan City and Busan Metropolitan City.

Next, the plaintiff's second argument is examined, and if the witness Kim Jong-young's testimony and on-site inspection results are all shown in Eul evidence No. 13 without dispute over the establishment, the plaintiff company's Busan factory is carrying the mentor's manufacturing and sales business, such as shipping convenience or saving of the documentary cost, and inserting it into the Busan factory. However, the plaintiff company's previous construction of the manufacturing business is included in the "convenition" of Article 47-2 of the Enforcement Rule of the Local Tax Act prior to December 31, 1978, because it is recognized that the manufacturing business was operated as it was in the previous factory (if it is separate from the calculation of profits and losses) and there is no counter-proof, it can be viewed that it falls under the case of acquisition, and the plaintiff's previous construction of the manufacturing business is not included in the "contition" of Article 47-23 of the Enforcement Rule of the Local Tax Act prior to December 31, 1978.

(5) Therefore, the plaintiff's objection claim is without merit, and it is dismissed, and the costs of lawsuit are assessed against the losing party and it is so decided as per Disposition.

February 28, 1981

Judges Kim Ho-young (Presiding Judge)