Plaintiff (Law Firm Barun, Attorneys Cho Ho-chul et al., Counsel for the plaintiff-appellant)

The head of Yeongdeungpo-gu Seoul Metropolitan Government

April 11, 2007

Seoul Administrative Court Decision 2006Guhap4585 decided July 26, 2006

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

Each disposition of imposition of each amount of tax on June 13, 2005, which the defendant made against the plaintiff on June 13, 2005, entered in the separate sheet Nos. 1 and 2 No. 7 through 10 of the separate sheet of tax amount, and entered in the separate sheet of tax amount.

2. The plaintiff's remaining appeal is dismissed.

3. 10% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance court is revoked. Each disposition of imposition by the Defendant against the Plaintiff on June 13, 2005 on each of the tax amounts indicated in the column 1 and 2 of the attached Table Nos. 1 and 2 of the attached Table Nos. 5 and 10 of the tax amount shall be revoked.

1. Basic facts

A. The Plaintiff is a corporation established on August 27, 1997 for the purpose of constructing apartment-type factories, selling in lots, and leasing businesses. On April 9, 2002, the Plaintiff acquired the land of this case, which was exempted from acquisition tax pursuant to Article 2 subparagraph 6 of the former Industrial Placement and Factory Establishment Act (amended by Ordinance No. 1308, Dec. 31, 2003) on the grounds that the Plaintiff acquired the land of this case for the purpose of constructing apartment-type factories (number 1 omitted) and 6,66.5 square meters (number 1 omitted) and the same 1 square meters (number 2 omitted).

B. On April 21, 2004, the Plaintiff newly constructed an apartment-type factory with the fourth underground floor, the 11st floor, the total floor area of 49,613.74 square meters on the instant land (hereinafter “instant apartment-type factory”) and obtained approval for use from the Defendant on April 21, 2004. The total floor area of the instant apartment-type factory according to the content of the approval for use was 39,457.87 square meters in a factory, 9,390.7 square meters in a warehouse, 765.1 square meters in a neighborhood living facility, and 231.9 square meters in a factory area was used for the business of the Plaintiff’s main office

C. On April 22, 2004, the Plaintiff reported differently the total floor area of the part of the factory among the apartment-type factories in this case as 39,80.87 square meters, and the total floor area of the warehouse and neighborhood living facilities as 9,812.87 square meters (ware 9,047.77 square meters, neighborhood living facilities 765.1 square meters). On May 12, 2004, the part reported as a factory among the apartment-type factories in this case was exempted from acquisition tax, etc. pursuant to Article 19 of the Seoul Special Metropolitan City Ordinance on Tax Reduction and Exemption (amended by Ordinance No. 4340 of Dec. 29, 2005; hereinafter “Ordinance of this case”). With respect to the part reported as a warehouse and neighborhood living facilities, the Plaintiff reported acquisition tax amounting to 138,94,190 won, 13,894,410 won, 5,57,670 won, 1301,150

D. On June 15, 2004, among the factory parts of the apartment-type factory of this case, the Plaintiff applied for the alteration of the use of a building to a neighborhood living facility, the sum of the size of 101 through 116, 105 through 110, 105-1, 107-1, 109-1, 114, 111 to 1118, 7,92.93 square meters in total, among which 109 and 109-1 are used as the main office after the alteration of the use of the Plaintiff’s main office (On the other hand, from October 14, 2004 to October 15, 2005, the alteration of the use of a factory has been changed to a factory).

E. On June 13, 2005, the Defendant imposed and notified the acquisition tax, registration tax, etc. on the Plaintiff on the following grounds:

(1) Parts omitted in return and payment

Under the premise that only the portion of the apartment-type factory of this case is subject to tax exemption, and that the main office, warehouse, and neighborhood living facilities are subject to tax, the Defendant deemed that the Plaintiff reported the amount of tax under-reported area by using different purposes and imposed acquisition tax, etc. on the area under-reported.

However, in the process of examining the legality before taxation, the Defendant mistakenly found the area of the part of the neighborhood living facilities, which was approved for use on the wind where some errors are entered in the apartment-type factory area list of this case, and as a result, calculated the taxable area as 11,404.44 square meters (the head office 231.9 square meters + 9,390.77 square meters + 1,781.77 square meters in neighboring residential facilities), as 1,591.57 square meters (11,404.4 square meters in April 4, 404-9,812.87 square meters in which the under-reported area was under-reported). Based on this, the Defendant re-calculated the tax amount based on this, and deducted the tax amount already reported and paid by the Plaintiff, and imposed the acquisition tax amount as 29,645,640 won in total, 2,478,910 won in total, 32,505 won and 1309,13604 won.

In addition, the Defendant imposed acquisition tax of KRW 47,80,60, totaling KRW 52,183,400, and registration tax of KRW 215,107,260, and local education tax of KRW 39,436,30,00, totaling KRW 254,543,590, as stated in the attached Table 3, 4, on the ground that the report and payment on the instant portion of the instant land corresponding to the tax area of KRW 11,404,40,000, which is calculated as above, was omitted (hereinafter collectively referred to as the “first disposition before the instant reduction”).

(2) Heavy taxation on the part of the principal office;

In applying the heavy acquisition tax rate (three times the standard tax rate) under Article 112(3) of the Local Tax Act to the portion of the main office among apartment-type factories of this case, the Defendant calculated only twice the relevant tax amount of the standard tax rate on the grounds that the said tax amount was imposed as the omitted portion, and imposed totaling KRW 9,361,420, including acquisition tax, KRW 8,639,040, and KRW 722,380,000, and KRW 9,361,420, as indicated in the attached Table No. 5 of the details of the tax amount on the ground that the relevant tax amount was imposed as the omitted portion of the return and payment, and imposed acquisition tax, KRW 1,90,570, KRW 16,440, and KRW 2,157,010, as indicated in the attached Table No. 6 of the details of tax amount on the instant portion corresponding to the main office portion (hereinafter referred to as “instant disposition”).

(3) Parts changed to neighborhood living facilities

Of the apartment-type factories of this case, the Defendant imposed the total of KRW 68,115,070,000, total of KRW 68,115,070,070, and KRW 7,761.03, which is the remainder after subtracting the portion of 231.9 square meters from the portion of the head office imposed as the omitted portion from the portion of return and payment from the factory on June 15, 2004, including the portion of KRW 7,761.9,03 square meters from the portion of the apartment-type factories of this case, as indicated in Table 7,8, 142,748,92,92, and KRW 12,08,00,000, total of KRW 154,836,970 and KRW 57,95,170, local education tax, and KRW 39,39,539,000,000.

F. On October 31, 2005, the Plaintiff filed a request for review with the Minister of Government Administration and Home Affairs for each of the instant dispositions. The Minister of Government Administration and Home Affairs, on the ground that the warehouse portion among the apartment-type factories in this case was substantially supplied for factory use, determined that the imposition of the warehouse portion in the first disposition before the instant reduction was unlawful, and all of the remaining dispositions were lawful. However, the Minister of Government Administration and Home Affairs, in calculating the amount of tax, recognized only the portion of neighborhood living facilities 1,781.77m2, excluding the portion of the main office 231.9m2 as a taxable area, and determined that the amount of tax imposed on the first disposition before the instant reduction was imposed as acquisition tax, 7,468,270, special rural development tax, 33,607,230 won, local education tax, 6,161,320 won, and accordingly, reduced the amount of tax imposed on the Plaintiff’s remaining portion of the amount of tax imposed on the Plaintiff’s 1707m2.

G. Meanwhile, while reviewing the taxation data during the proceeding of the first instance trial, the Defendant became aware of the fact that the area of the part of the neighborhood living facilities originally approved among the apartment-type factories of this case was 765.1 square meters. Accordingly, the Defendant reduced and corrected the tax amount by 12,025,910, additional tax 2,405, local education tax 2,405,40,510, and additional tax 240,510,000,000,000,000,0000,000,076,420, additional tax 520,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000 won.

[Based on Recognition] Unsatisfy, Gap evidence 1-1-1-10, Eul evidence 2-1, 2-2, Gap evidence 3, 4, 6, 7, 8, 10, Eul evidence 1-4, Eul evidence 5-1 through 10, Eul evidence 6 through 10, Eul evidence 1-1-2, Eul evidence 12-1, Eul evidence 13-2, and the purport of whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) As to the first and third dispositions of this case

The term "Type-type factory" in the main sentence of Article 19(1) of the Ordinance refers to the apartment-type factory under the Act and the Enforcement Decree of the Act, i.e., the apartment-type factory that can house at the same time six or more factories in the same building, and it does not mean only the factory of the type of manufacturing business except support facilities.

In addition, the purpose of the proviso of Article 19(1) of the Ordinance is not to prohibit the alteration of the purpose of use itself, but to prevent the unfair reduction of the use of industrial facilities or facilities other than those for supporting facilities in the apartment-type factory, and the term "factory or venture business" in the proviso of the above proviso should be interpreted as "factory or venture business" in the main

In addition, even if the apartment-type factory of this case was unsold in lots and leased 5,324.53 square meters among the neighborhood living facilities in the apartment-type factory of this case, but part 9,00.05 square meters used as facilities to conduct manufacturing business are not subject to collection, and the alteration of use of a factory to a neighborhood living facility within the scope of 30/100 of the total floor area permitted pursuant to Article 36-4(3) of the Enforcement Decree of the Act constitutes a case where there exists "justifiable cause" under the proviso of Article 19(1) of the Ordinance of this case.

Therefore, the first and the third dispositions of this case, which were interpreted differently as above Article 19(1) of the Ordinance, are unlawful.

(2) As to the second disposition of this case

In the interpretation of Article 19(1) of the Ordinance of this case, support facilities in the apartment-type factory shall be exempted from acquisition tax, etc., and since the main part of the apartment-type factory in this case falls under support facilities as Class II neighborhood living facilities under subparagraph 4 of attached Table 1 of the Enforcement Decree of the Building Act, it shall be exempted from acquisition tax, etc.

The purport of Article 112(3) of the Local Tax Act is to restrain the establishment and extension of the head office which significantly causes population inflow and industrial concentration in the metropolitan area. Thus, even if the head office is relocated, acquisition tax may not be imposed if the population inflow and industry concentration are not significantly induced within the metropolitan area. By opening the head office on August 27, 1997, when the Plaintiff was established, the population inflow and industry concentration had already occurred due to the Plaintiff’s establishment in the overconcentration control region. Even if the Plaintiff acquired the land and apartment-type factory in this case and transferred the head office to the head office, it did not cause additional population inflow or industry concentration effect. Thus, the instant disposition violates Article 112(3) of the Local Tax Act by imposing acquisition tax, etc. on the relocation of the head office in the overconcentration control region.

Since the relocation of real estate to a new building after leasing it to a main office in the same overconcentration control region does not cause new population inflow or industry concentration in the overconcentration control region, it is not necessary to impose heavy acquisition tax, and it goes against the principle of excessive prohibition even though it does not go against the legislative intent of the heavy acquisition tax.

Therefore, Article 19(1) of the Ordinance of this case and Article 112(3) of the Local Tax Act, etc. are interpreted differently as above, and Article 2 of the Local Tax Act is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) As to the first and third dispositions of this case

Article 19(1) of the Ordinance of this case provides that "real estate acquired for the purpose of constructing an apartment-type factory under Article 2 subparag. 6 of the Act shall be exempted from acquisition tax, etc., and the proviso provides that "where a building is sold or leased for any purpose other than a factory or venture business without justifiable grounds within five years from the date of issuance of approval for use of the building" shall be collected additionally for the corresponding portion.

In addition, the apartment-type factory under subparagraph 6 of Article 2 of the Act refers to "a collective building with not less than three floors which can house not less than six factories at the same building at the same time" (Article 2 subparagraph 6 of the Act, Article 4-5 of the Enforcement Decree of the Act), the apartment-type factory may move into facilities for manufacturing business and other business prescribed by the Presidential Decree, facilities for supporting the production activities of occupant enterprises under Article 2 (1) of the Act on Special Measures for the Promotion of Venture Businesses, and other facilities for supporting the production activities of occupant enterprises as prescribed by the Presidential Decree (Article 28-5 (1) of the Act). The above facilities for supporting the production activities of occupant enterprises have neighborhood living facilities under subparagraphs 3 and 4 of the attached Table 1 of the Enforcement Decree of the Building Act, and the scale of these supporting facilities is limited to 20/100 (in the case of the apartment-type factory in an industrial complex under subparagraph 7 of Article 2 of the Act, 20/100) of the total floor area of the apartment-type factory concerned.

According to the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the law, unless there are special circumstances. In light of the main sentence of Article 19(1) of the Ordinance, "real estate acquired for the purpose of constructing an apartment-type factory under Article 2 subparag. 6 of the Act" is defined as "real estate acquired for the purpose of constructing an apartment-type factory under Article 2 subparag. 1 of the Act" and there was no stipulation that it is limited to factories under Article 2 subparag. 1 of the Act or exclude support facilities, which is different from that of "real estate for the purpose of running a business or a venture business under Article 28-5(1) subparag. 1 and 2 of the Act" in Article 19(2) of the Ordinance of this case from clearly limiting the target of exemption to "real estate for the purpose of running an apartment-type factory or a venture business under Article 28-5(1)1 and subparag. 6 of the Act" and there is no provision defining the apartment-type factory differently from the apartment-type factory under Article 2 subparag. 6 of the Act.

On the other hand, the purport of the Ordinance of this case stipulating exemption from acquisition tax, etc. following the construction of apartment-type factories is strengthened in accordance with the Seoul Metropolitan Area Readjustment Planning Act, and in order to promote industrial clustering in Seoul Special Metropolitan City, which is an overpopulated control area as defined in subparagraph 2 of Article 2 of the Act, the construction of apartment-type factories is exceptionally granted tax benefits in accordance with the proviso of Article 20 (1) of the Act. However, since the purpose of the construction of apartment-type factories is to contribute to the above purpose of the construction of apartment-type factories, it cannot be readily concluded that granting tax benefits to the whole apartment-type factories including the apartment-type factories goes against the legislative purpose of the Ordinance of this case. Considering that the Act and the Enforcement Decree of the Act prevent the construction and use of apartment-type factories that go beyond the original purpose of legislation by limiting the scope and scale of support facilities permitted to occupy apartment-type factories, it cannot be interpreted narrowly differently from the text of the Act.

Furthermore, in relation to the grounds for additional collection under the proviso of Article 19 (1) of the Ordinance of this case, the term "factory or venture business" under the above proviso of the Act cannot be interpreted as "factory or venture business" under the main sentence of the same paragraph. However, in light of the interpretation theory of the main sentence of the above provision, the grounds for additional collection under the above proviso refer to the case where the factory portion under Article 2 (1) of the Act among apartment-type factories is sold, leased or sold for the same purpose or for the purpose other than venture business, and it shall be interpreted that the part other than the factory portion, such as support facilities, does not constitute the above grounds for additional collection.

As to the apartment-type factory of this case, the entire total floor area of the part of the apartment-type factory of this case among the apartment-type factory of this case is 765.1m2 and the part of 7,92.93m2 used in the factory of this case on June 15, 2004, and 17.65m2 of the total floor area of the apartment-type factory of this case is 49,613.74m2, and there is no other support facilities within the apartment-type factory of this case, and there is no data to recognize that the part of the apartment-type factory of this case was used as a factory under the provisions of subparagraph 1 of Article 2 of the Act before the purpose of use is changed, since the part of the apartment-type factory of this case was first approved for use, the part of the apartment-type factory of this case is not subject to exemption under the main sentence of Article 19(1) of the Ordinance, and the part of the apartment-type factory of this case is not subject to exemption under the proviso of the same paragraph.

Therefore, the first and third dispositions of this case, which regarded the part of the apartment-type factory of this case as subject to taxation or collection, is unlawful.

(2) As to the second disposition of this case

In light of the purport of Article 19(1) of the Ordinance of this case, it is difficult to view the above provision as a special provision on tax exemption for acquisition tax, etc. on real estate for business purposes of the head office or main office of the corporation, and the real estate for business purposes of the head office of this case shall be preferentially applied to the Ordinance of this case under Article 112(3) of the Local Tax Act, which is a superior law. Thus, the part of the main office of the apartment-type factory of this case among the apartment-type factories of this case, which is subject to tax exemption under the main sentence of Article 1

In addition, the purpose of Articles 112(3) and 112-2(1) of the Local Tax Act is to impose acquisition tax on the acquisition of real estate for business purposes of the head office or main office in the overconcentration control region as stipulated in Article 6 of the Seoul Metropolitan Area Readjustment Planning Act in order to restrict population inflow and the establishment and extension of the head office or main office significantly causing concentration in the metropolitan area. Thus, in cases where the head office or main office is already located in the overconcentration control region and the office is transferred within the same region, acquisition tax shall not be subject to heavy acquisition tax under Article 112-2(1) of the same Act unless there are special circumstances. However, it shall not be deemed that it does not constitute acquisition tax even in cases where the said head office or main office is used as the head office or main office after leasing real estate owned by another person and then it is transferred to the new real estate acquired (see Supreme Court Decision 9Du6309, May 30, 200).

However, comprehensively taking account of the overall purport of the pleadings as to Gap evidence Nos. 2, 17, and 20, the plaintiff was established on August 27, 1997 by setting up the main office of Geumcheon-gu Seoul Metropolitan Government ○○○dong (number 3 omitted) and then moving the main office to operate the business around October 21, 1997, which is the location of the apartment-type factory of this case. The plaintiff acquired the land of this case and used another building for the construction of the apartment-type factory of this case, and moved the main office to the apartment-type factory of this case around March 30, 204. Thus, it cannot be deemed that the case of this case where the plaintiff used the real estate owned by others as the main office and moved the said main office to the real estate that was newly acquired by the said head office is not subject to acquisition tax until the date of this case.

Therefore, the Plaintiff’s acquisition of the main part of the apartment-type factory of this case shall be subject to acquisition tax under Article 112(3) of the Local Tax Act, and it cannot be deemed an appropriate means to achieve the public interest purpose, or it cannot be deemed that the disadvantages of heavy taxation, such as acquisition tax, etc., received by a corporation which is a fundamental right, are higher than the public interest purpose to be achieved as a means, and thus, is contrary to the principle of excessive prohibition.

Ultimately, the plaintiff's assertion disputing the legality of the second disposition of this case cannot be accepted.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of revoking the disposition 1 and 3 of this case, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair with different conclusions, part of the plaintiff's appeal is accepted, and part of the disposition 1 and 3 of the judgment of the court of first instance against the plaintiff is revoked, and the remaining appeal of the plaintiff is dismissed. It is so decided as per Disposition.

【Omission of Tax Table】

Judges Cho Yong-ho (Presiding Judge)