[1] Whether "general hotel business" is included in the scope of "tourist accommodation business, which is a corporation's inherent business (affirmative)

[2] Whether "justifiable reasons" under Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act exists in a case where a corporation has imposed a grace period because it inevitably required for the execution of construction works even though it has performed its normal efforts (affirmative)

[1] Under the Korean Standard Industrial Classification publicly notified by the Commissioner of the National Statistical Office as to whether hotel business operated by a corporation falls under the scope of the ‘tourist accommodation business' as a business in the corporate register of the corporation, the term ‘tourist accommodation business' includes the hotel business, the hotel business, the hotel business, the hotel business, and the hotel business in the classification of the items of the ‘tourist accommodation business', but the term ‘tourist accommodation business' is not separately classified. The above ‘tourist accommodation business' is explained by the fee as ‘industrial activities providing accommodation or camping space and equipment to the general or specific members for a short period of time,' while the ‘tourist accommodation business' is limited to the ‘tourist accommodation business' defined in the Tourism Promotion Act in which the ‘tourist accommodation business' was in operation at the time, or there is no evidence to view that the ‘tourist accommodation business' is recognized as completing the business plan and registration under the same Act, it is difficult to view that the ‘tourist accommodation business' is clearly distinguishable from the ‘tourist accommodation business'.

[2] Since a corporation inevitably needs to carry out a construction project despite its normal efforts and implementation, if the grace period under Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14481 of Dec. 31, 1994) concerning non-business land of the corporation has been expired, it shall be deemed that there is a justifiable reason for not being used directly for its unique business and exclude the scope of non-business land. The justifiable reason here includes not only the external reason that the corporation cannot use directly for its unique business, but also the internal reason beyond the grace period due to lack of time, even though it has made normal efforts to use for its unique business, and in determining the existence of a justifiable reason, it shall be determined by considering the length of preparation period required for using for its unique purpose in light of the purpose of acquiring the land for non-business use, its unique purpose, its unique reason and degree of disability, its actual and serious effort to use the land for its unique business, and it shall be determined whether there is a legitimate reason to comprehensively implement the new construction project as a whole.

[1] Article 112 (2) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994); Article 84-4 (1) and (2) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14481 of Dec. 31, 1994) / [2] Article 112 (2) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994); Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 1481 of Dec. 31, 1994)

[1] Supreme Court Decision 92Nu11657 delivered on June 11, 1993 (Gong1993Ha, 2052), Supreme Court Decision 97Nu478 delivered on April 11, 1997 (Gong1997Sang, 1497) / [2] Supreme Court Decision 92Nu19279 delivered on March 25, 1994 (Gong194Sang, 1363), Supreme Court Decision 95Nu6120 delivered on September 26, 1995 (Gong195Ha, 353), Supreme Court Decision 95Nu18314 delivered on March 12, 1996 (Gong196Sang, 1301)

Movable Property Promotion Co., Ltd. (Attorney above-Law)

State Mayor (Attorney Ha-tae, Counsel for defendant-appellant)

Gwangju High Court Decision 95Gu626 delivered on November 30, 1995

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the plaintiff corporation had its unique business imposed acquisition tax on the plaintiff on the ground that the land was non-business of a corporation on May 9, 1994 on the ground that it was hard to find the plaintiff corporation's own business with a grace period on the ground that the land was non-business of a corporation, and it was hard to find the plaintiff corporation's own business with a permission from its representative director on May 28, 1991 and completed the completion inspection on December 14, 1993. The non-party, who is the representative director of the plaintiff corporation, obtained a permission for the accommodation business under the Public Health Act on the ground of his personal name, and the plaintiff corporation started the above hotel business on the 20th of the same month. The court below rejected the plaintiff corporation's assertion that the plaintiff corporation did not directly use the land of this case for non-business business because it was not a legitimate ground for the plaintiff corporation's own business as of December 1, 1994.

However, Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (amended by the Presidential Decree No. 14481 of Dec. 31, 1994) which provides the scope of land for non-business use of a corporation among acquisition tax provides that land for non-business use of a corporation refers to land that is not used directly for the corporation's unique business without justifiable grounds within one year from the date of its acquisition. Paragraph (2) of the same Article provides that "business affairs individually provided in Acts and subordinate statutes, 2.0, business affairs designated as purpose business in corporate register, 3.0, business affairs authorized and permitted by an administrative agency". Pursuant to the Korean Standard Industrial Classification publicly notified by the Commissioner of the National Statistical Office, it is difficult to view that the hotel business operated by the plaintiff corporation falls under the scope of "business of accommodation business" and "business of accommodation business" as "business of accommodation business" and "business without common accommodation business" or "business of accommodation business", and it is difficult to view that it falls under the category of "business of accommodation business" or "business plan of accommodation business."

In addition, if a corporation conducted a grace period for unavoidable reasons in the course of carrying out construction works even though it had fulfilled normal efforts and implementss, it shall be deemed that there is a justifiable reason for not using the land for its unique business, and it shall be excluded from the scope of non-business land. The justifiable reason here includes not only external reasons that the corporation cannot use for its unique business but also internal reasons beyond the grace period because it has made normal efforts to use for its unique business, such as prohibition, restriction, etc. under the laws and regulations, but also internal reasons for exceeding the grace period due to lack of time. In determining the existence of justifiable reasons, considering the importance and purport of acquisition tax on non-business land, the preparation period required for using for its unique purpose in light of the purpose of acquisition of the land shall be determined individually according to specific matters, in addition to the length of preparation period, the Acts and subordinate statutes which cannot be used for its unique purpose, the reason and degree of de facto disability, and whether the corporation has made efforts to use the land for its unique business. In particular, even if minor procedural defects during the process of carrying out construction of a building, if there is a justifiable reason to observe the whole.

Therefore, the court below should have deliberated on all the circumstances including the measures taken by the plaintiff corporation and the size of the hotel building of this case after the acquisition of the land of this case until the completion of the hotel building of this case and judged whether there is a justifiable reason for the grace period. However, without doing so, the court below decided that the land of this case was a non-business land of a corporation for reasons as stated in its reasoning, and the court below erred in the misapprehension of legal principles as to the land for non-business use of a corporation, and there is a reason to point out this point.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)