2015 Doz. 4929 Doz. revocation of an order to submit materials

Hando Development Corporation

Main Market

May 27, 2016

June 24, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

As of July 1, 2015, the Defendant revoked the order to submit a report to the Plaintiff as a result of a survey on the current status relating to the extension of the period of membership membership.

1. Details of the disposition;

A. The Plaintiff is a person operating a golf course, condominium, etc. within 66, 1-gil, 1-gil, if designated as the original city, and the Defendant is the head of a local government having the authority to impose acquisition tax, which is a local tax

B. On July 1, 2015, the Defendant newly established Article 20(11) of the Enforcement Decree of the Local Tax Act on August 1, 2014 to the Plaintiff on the title “the current status survey relating to the extension of the membership period,” and made clear that the term of existence or the extension of the membership period is subject to new acquisition tax, by stipulating that “if the term of existence or the duration of the membership is extended, the newly established date shall be deemed the date of acquisition.” Therefore, the Defendant demanded that the Plaintiff submit the results of the current status survey of the members subject to acquisition tax from January 1, 2011 to June 30, 2015 in accordance with the current status survey and form related to the extension of the membership period (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. The plaintiff's assertion

A. As Article 20(11) of the Enforcement Decree of the Local Tax Act becomes invalid unconstitutional or unlawful, the claim that the submission of materials is unlawful.

1) The Local Tax Act does not provide for the time of acquisition, and does not delegate it to the Presidential Decree, etc. Therefore, even if the Enforcement Decree has stipulated the time of acquisition, it does not go against the purport of the parent law and the superior law order, and does not limit the fundamental rights of the people or impose a new obligation. However, Article 20(11) of the Enforcement Decree of the Local Tax Act, newly established on August 12, 2014, where the period of existence or duration of participation is extended, such as golf membership and container membership, is deemed to have been acquired on the new date when the new period of time is extended, and thereby restricting the rights of the people and imposing a new obligation upon the renewal of the period of entry, thereby going against the principle of statutory reservation and the principle of no taxation without law.

2) According to the above Enforcement Decree, the imposition of acquisition tax is changed depending on the cycle of membership and the imposition of a smaller amount of tax is contrary to the principle of tax equality, equality, and the principle of fair taxation.

3) In addition, Article 2 of the Addenda of the Enforcement Decree provides that the tax liability shall begin to apply to the portion for which the tax liability arises after the enforcement of the Enforcement Decree. Accordingly, the foregoing provision uniformly applies to all cases where membership rights are renewed after August 12, 2014. Accordingly, the foregoing provision is applied to cases where membership rights are renewed after the enforcement of the Enforcement Decree after attending the establishment of the Enforcement Decree and being enforced before the enforcement of the Enforcement Decree.

4) Therefore, the application of the enforcement decree that is null and void as above should be excluded, and the instant disposition should be revoked as an unlawful disposition that was made without any legal basis.

B. The allegation that it is illegal since it requires comprehensive data submission

The Defendant’s order to submit a report is based on Article 20(11) of the Enforcement Decree of the Local Tax Act. However, the Defendant’s order to submit data on the entire status of members subject to acquisition tax within the period from January 1, 2011 to June 30, 2015, not only the renewed membership details, is demanding data on the entire status of members subject to acquisition tax. This demand an excessive comprehensive data beyond the scope of data that can be demanded. The Plaintiff required the first purchaser to report acquisition tax, and accordingly there is no need for the Defendant to issue an order to submit the relevant data.

3. Determination on the legitimacy of the instant disposition

(a) Related Acts and subordinate statutes;

Attached Acts and subordinate statutes.

B. Determination

1) The assertion that the enforcement decree is unconstitutional or illegal and thus the submission of materials is unlawful

A) Whether Article 20(11) of the Enforcement Decree of the Local Tax Act is unconstitutional and whether the instant disposition is lawful

(1) Article 136 of the Framework Act on Local Taxes provides that if necessary to conduct an investigation into the imposition and collection of local taxes, a tax official may ask a taxpayer or a person deemed to have a tax liability, a person deemed to have a direct relationship with the imposition and collection of local taxes, or inspect their books, books, documents, and other articles (Paragraph 1). If necessary for an investigation, he/she may request a relevant person to appear or submit other necessary books, documents, and articles (Paragraph 3). In addition, Article 131-2(1)2 of the same Act provides that a tax official shall impose an administrative fine not exceeding five million won on a person who makes a false statement on, refuses, or evades the performance of his/her duties on, a tax official under this Act or the Acts related to local taxes, thereby ensuring the fulfillment of his/her right to ask questions or request questions by imposing an administrative fine not exceeding five million won.

(2) On the other hand, the instant disposition is intended to specify whether to impose the acquisition tax and the time of acquisition as it is deemed necessary for a tax official to investigate the imposition and collection of local taxes pursuant to this Act and require the Plaintiff to report the relevant matters or to submit necessary materials related to the imposition and collection of acquisition tax.

(3) In addition, Article 20(11) of the Enforcement Decree of the Local Tax Act is a provision specifying the time of acquisition of acquisition by delegation of the Local Tax Act, rather than a provision on the basis of imposition of acquisition tax. Therefore, the issue of whether the Defendant’s act of investigating persons subject to imposition of acquisition tax and the instant disposition issued to determine the amount thereof is an examination of whether the order itself is unlawful or not, and it is irrelevant to whether Article 20(11) of the Enforcement Decree of the Local Tax Act is unconstitutional. Therefore, the Plaintiff’s assertion asserted

B) Whether Article 20(11) of the Enforcement Decree of the Act is unconstitutional

As seen earlier, it is not directly related to the legality of the instant disposition. However, even if it is based on different premise, Article 20(11)1 of the Enforcement Decree cannot be deemed as unconstitutional as follows.

(1) Article 6 of the Local Tax Act provides that "acquisition" means any original acquisition, acquisition by succession, or all other acquisitions with or without compensation, such as sale, exchange, inheritance, gift, contribution, contribution, investment in kind to a corporation, construction scale, repair, reclamation of public waters, and creation of land through reclamation, and any other similar acquisition. Article 7(1) provides that "acquisition tax shall be imposed on a person who has acquired real estate, vehicle, machinery, equipment, aircraft, vessel, fishing right, golf club membership, golf club membership, golf club membership, sports club membership, or yacht club membership." Meanwhile, Article 10(7) of the Local Tax Act provides that "The value at which the tax base of acquisition tax is the excess standard, the amount of annual installments or the scope of its amount, the scope of its application, and the time of acquisition shall be determined by Presidential Decree," and Article 7(1) provides that "the period of existence of a golf club membership shall not be extended to a person who has received the delegation of the Local Tax Act or the date of acquisition."

(2) Acquisition tax is a taxable object regardless of whether a purchaser acquires the ownership of the actual complete content, regardless of whether the purchaser acquires the ownership from using, earning, or disposing of the goods, based on the type of distribution tax, which focuses on the fact that the transfer of the original goods is the transfer of the goods, and imposes a tax on the purchaser who recognizes and imposes the tax-bearing capacity (see, e.g., Supreme Court Decision 95Nu10627, Jan. 24, 199). Accordingly, even if the term of existence or membership period is extended, it is determined whether the acquisition tax is imposed depending on whether it falls under the actual acquisition, and the Enforcement Decree provides for the acquisition time. Ultimately, insofar as this Enforcement Decree does not determine the scope of imposition or imposition itself, the new enforcement decree does not violate the principle of prohibition of retroactive legislation and the principle of protection of trust, insofar as the new enforcement decree does not violate the principle of protection of trust.

(3) Furthermore, given that membership with a longer membership period is less than the number of times for extension of maturity, low acquisition tax is to be paid, and the membership period is shorter than the number of times for extension of maturity, and the number of times for extension of maturity is paid. However, this is only a matter arising from the definition of acquisition, and it does not vary depending on when the time of acquisition is determined. Therefore, the above Enforcement Decree cannot be deemed to contravene the principle of tax equality, equal rights, and tax equity.

C) Ultimately, the Plaintiff’s above assertion is either mother or without merit.

2) Determination as to the assertion that the request for comprehensive data or unnecessary data is unlawful

A) The Plaintiff, as the issuer of membership, is deemed to be a person directly related to the imposition and collection of acquisition tax, which is a local tax in relation to the membership. As such, the Defendant may be required to ask questions or report on the necessary part in relation to the imposition and collection of local tax or to request documents.

B) As seen earlier, even in a case where the term of existence or the term of validity of golf membership membership rights is extended, there exists a case of de facto acquisition in light of the background or type of the extension. Moreover, in order to verify whether the extension or renewal of membership rights constitutes an act of acquisition in fact in accordance with the legal principles as seen earlier, it is necessary to grasp in detail the contents of membership and membership rights in order to verify whether the extension or renewal of membership rights constitutes an act of acquisition in accordance with the legal principles as seen earlier. As long as the establishment of a ground provision clarifying the time of acquisition, it is reasonable to deem that the Defendant allowing the Plaintiff, the issuer of membership rights, to ask questions or

C) On the other hand, in order to determine the subject of imposition of acquisition tax related to renewal, the specific details of membership rights, methods of acquisition and renewal, rules, etc. should be confirmed. This is deemed to be clearly known through an investigation into the current status of memberships subject to acquisition tax. The items of investigation into current status sought by the Defendant are within the necessary scope in order to verify whether the items of investigation into current status consist of membership rights, personal information, taxpayers, membership details (number of membership rights, date of acquisition, amount of guarantee, duration of membership, duration period of membership, expiration period, duration of membership period, duration of membership period, type of association), and the amount of tax paid by the return of the existing acquisition tax, and the period is limited to a certain scope from January 1, 201 to June 30, 2015, the instant disposition is legitimate within the necessary scope for proper imposition of acquisition tax. Therefore, the Plaintiff’s assertion on this part is without merit.

3) Therefore, the instant disposition is lawful.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Nowon-gu (Presiding Judge)

Maap Young-young

For static purposes

(Attached Form)

Related Acts and subordinate statutes

Local Tax Act

Article 6 (Definitions)

The terms used in relation to acquisition tax shall be defined as follows:

1. The term "acquisition" means sale, exchange, inheritance, gift, contribution, contribution, contribution in kind to a corporation, construction, repair, or sale of public waters;

Original acquisition, acquisition by succession, or oil as a result of the creation, etc. of a parcel of land or any other similar acquisition;

It refers to all the acquisition of an award and free of charge.

Article 7 (Taxpayer, etc.)

(1) Acquisition tax shall be real estate, vehicles, mechanical equipment, aircraft, ships, standing trees, mining rights, fishing rights, golf membership rights, riding club membership rights, containers.

Dominium membership, sports complex user, or yacht club member (hereafter referred to as "real estate, etc." in this Chapter)

It shall be imposed on the acquired person.

Article 10 (Tax Base)

(1) The tax base for acquisition tax shall be the value as at the time of acquisition: Provided, That where acquisition is made in annual installments, the amount of annual installment payments.

(referring to the amount actually paid each time, including the contract bond included in the amount of acquisition; hereafter in this Section, the same shall apply.

the same shall apply).

(7) The scope and amount of money, price, or annual installment, which serves as the tax base for acquisition tax under paragraphs (1) through (6).

The application and the time of acquisition shall be prescribed by Presidential Decree.

Article 12 (Tax Rates on Acquisition Other Than Real Estate)

(1) The following standard tax rates shall be stated in the tax base under Article 10 for acquisition tax on the following real estate, etc:

The tax amount shall be the amount calculated by making use of such amount.

7. Golf course membership, riding club membership, condominium membership, sports complex membership, or yacht club membership: 1/1000.

Enforcement Decree of the Local Tax Act

Article 20 (Timing, etc. of Acquisition)

(1) The term of existence of golf club membership, riding club membership, condominium membership, sports complex membership, and yacht club membership; and

shall be deemed acquired on the first day of the new period if the period of attendance is extended.

The Framework Act on Local Taxes

Article 136 (Right of Inquiry of Tax Officials)

(1) A tax official shall conduct an investigation into the imposition and collection of local taxes, if necessary, those listed in the following:

may question the account books, documents and other articles of the person or inspect the account books, documents and any other articles of the person.

1. A taxpayer or a person deemed to have a tax liability;

2. Persons liable for extraordinary collection;

3. A person who trades money or goods with any person referred to in subparagraphs 1 and 2, or who is recognized as having transacted such transaction;

person who has become

4. Other persons deemed directly related to the imposition and collection of local taxes.

(3) A tax official shall require the persons listed in the subparagraphs of paragraph (1) to file a report or take out of the report, if necessary for conducting an investigation.

may require the submission of books, documents, and articles required by this section. Finally.