[1] The purport of imposing acquisition tax on a corporation's land for non-business use

[2] Whether there is "justifiable reason for failing to sell land within the grace period" in a case where the period of repayment of secured debt is determined after the grace period under the proviso of Article 84-4 (4) 2 of the former Enforcement Decree of the Local Tax Act when acquiring land for the purpose of transfer for security (affirmative)

[1] Article 84-4 (4) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14481 of Dec. 31, 1994) provides that land which is not deemed land for non-business use of the corporation and subparagraph 2 of Article 84-4 provides that "the same shall not apply to the case where the land is not sold within one year after its acquisition without any justifiable reason," thereby imposing an obligation to sell the land acquired by the corporation for the purpose of preserving or exercising the claim within the grace period. It is intended to prevent non-productive speculation caused by the acquisition and holding of the land for non-commercial purposes by the corporation to seek efficient use of the land.

[2] Where a corporation acquires land for the purpose of collateral security, it cannot sell the land and appropriate it for the repayment of the bonds for the period during which the secured debt has not yet arrived. In such a case, there is a justifiable reason under Article 84-4 (4) 2 of the former Enforcement Decree of the Local Tax Act as to the failure to sell the target land during the period from the date of acquisition to the date of payment. The circumstance that the corporation agreed to pay the secured debt after the grace period under the same provision does not interfere with the recognition of the above justifiable reason.

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

[1] Supreme Court Decision 93Nu23435 delivered on June 28, 1994 (Gong1994Ha, 2129) Supreme Court Decision 94Nu7508 delivered on October 14, 1994 (Gong1994Ha, 3020)

[Plaintiff-Appellee]

The head of Dong-gu Gwangju Metropolitan City

Gwangju High Court Decision 94Gu3505 delivered on May 19, 1995

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

We examine the grounds of appeal.

1. Summary of the judgment below

The court below, on August 28, 1992, acknowledged that the plaintiff corporation entered into a contract of transfer to secure the non-party company's claim such as goods price claim against the non-party company of the plaintiff corporation for the purpose of securing the claim, etc. on August 31, 1994. Accordingly, on September 24, 1992, the court below rejected the plaintiff corporation's claim that the non-party company did not exercise its right of transfer to the above land for the purpose of sale under the provision of Article 484 of the Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 1481 of Dec. 31, 1994), and that the non-party corporation did not exercise its right of transfer to the non-party corporation for the purpose of sale as the non-party corporation's land which was not used for its unique business without a justifiable reason within one year from the date of its acquisition. Thus, the court below rejected the plaintiff's claim that the non-party corporation did not exercise its right of transfer to the above land for non-party.

2. Article 84-4 (4) of the Enforcement Decree of the above Local Tax Act provides for land which is not deemed land for non-business use of a corporation, and subparagraph 2 thereof provides for the purpose of preserving or exercising a claim: Provided, That the same shall not apply to the case where a corporation does not sell the land which it delegates the sale to the Korea Assets Management Corporation established under the Banking Act, the Insurance Business Act, the Trust Business Act, or any other Act without any justifiable reason within one year after the acquisition (in case where a financial institution under the Banking Act, the Trust Business Act, or the Korea Assets Management Corporation established under the Korea Development Bank Act does not sell the land within two years and six months) and farmland which it is acquired by a farmland mortgage institution under Article 3 of the Farmland Security Act, and land which is acquired for the purpose of preserving or exercising a claim within the grace period. Thus, it is intended for the corporation to prevent unproductive speculation due to the acquisition and possession of the land other than its own purpose and to effectively use the land (see Supreme Court Decision 94Nu7508, Oct. 14, 1994).

Even according to the reasoning of the judgment of the court below, the plaintiff corporation could not dispose of the land of this case during the grace period, since the repayment period of the secured obligation was set at one year after the grace period stipulated in the above Enforcement Decree when the security transfer agreement of this case was made. Therefore, it should be deemed that there is a justifiable reason that the plaintiff corporation could not sell the land of this case within the grace

In addition, among the reasons stated by the court below, it is difficult to deny the above legitimate ground on the ground that the non-party company and the above non-party are not able to repay the secured debt even at the time when the above repayment period has already arrived at the time of the contract for the transfer of security in this case, and the fact that the non-party company and the above non-party are not able to repay the above debt until the date of closing argument in this case where the payment period has expired.

Ultimately, the judgment of the court below is erroneous in the misapprehension of legal principles as to legitimate grounds under the above provision of the Enforcement Decree, or in finding facts without evidence, which affected the conclusion of the judgment. The grounds for appeal are justified

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)