Large Leisure Industry and one other (Law Firm Pacific, Attorneys Cho Il-young et al., Counsel for the plaintiff-appellant)

Hongcheon-gun

March 19, 2014

Chuncheon District Court Decision 2012Guhap1455 Decided February 15, 2013

1. The plaintiffs' appeals and the claims added to the trial are dismissed, respectively.

2. The costs of appeal and the costs of appeal incurred in addition to the claim in the trial are assessed against the plaintiffs.

The judgment of the first instance court is revoked. The defendant sought revocation of the disposition of imposition of acquisition tax, registration tax, special rural development tax, and local education tax on August 17, 201. The defendant's disposition of imposition of additional tax No. 1 to 15 on the Plaintiff, Large Leisure Industry (hereinafter referred to as "Plaintiff Large Leisure Industry"), and the disposition of imposition of additional tax on August 18, 201, as stated in attached Table 16, 17, acquisition tax, registration tax, special rural development tax, and local education tax (the plaintiff's disposition of imposition of additional tax No. 1 to 17, acquisition tax, rural education tax, rural development tax, and local education tax were all stated in attached Table 1 to 3, imposition of additional tax, imposition of additional tax No. 1 to 15, imposition of additional tax, imposition of additional tax on each of the plaintiff, imposition of additional tax No. 2 to 1 to 3, imposition of additional tax, imposition of additional tax on each of the plaintiff, imposition of additional tax No. 2 to 1 to 7.

1. Details of the disposition;

A. From November 1987, Plaintiff Hongcheon-gun ( Address 1 omitted) operated ○○○○○○○○○○○○○.

B. On November 21, 2008, the Governor of Gangwon-do designated and publicly announced the Plaintiff’s Grand Leisure as the developer (Article 2008-346 of the Gangwon-do Notice; hereinafter “the designation and public notice of this case”) the total area of KRW 5,468,156 square meters per day, including the existing Hongcheon-gun, Hongcheon-gun, including ○○○○○○○○, and KRW 5,46 square meters per day, pursuant to the Tourism Promotion Act (hereinafter “instant tourism complex”).

C. On February 6, 2009, Plaintiff Large Leisure requested the correction of the designation and announcement of this case to be added to the development entity. The Governor of Gangwon-do approved the designation and announcement on the 9th day of the same month. After that, on July 31, 2009, Plaintiff Large Leisure absorption and merger of Large Names, on September 3, 2009, the Governor of Gangwon-do changed Large Names among the development entities of the instant designation and announcement to the Plaintiff Large Names on the application of the Plaintiffs.

D. According to the tourism complex development project plan, the Plaintiffs acquired real estate in the column of taxation subject to attached Form 1, including condominiums, youth hostels, dormitories, etc. (hereinafter collectively referred to as “instant real estate”). From December 2008 to December 2010, the Plaintiffs applied for reduction or exemption of acquisition tax, etc. pursuant to Article 277(1) of the former Local Tax Act (amended by Act No. 10221 of March 31, 2010) or Article 277(1) of the former Local Tax Act (amended by Act No. 9302 of December 31, 208), with respect to the instant real estate, to the Defendant from December 2008 to December 31, 2010 (hereinafter collectively referred to as “reduction or exemption clause”). Accordingly, the Plaintiffs reduced or exempted the acquisition tax, etc. from the total amount of acquisition tax, registration tax, 2,35,217, 910 won, special rural development tax, 3067, 47.7

E. However, in relation to the tax guidance in 2011, Gangwon-do, the private developer acquired the development project operator’s license only after obtaining approval for a tourism complex development plan pursuant to Article 55(1) of the Tourism Promotion Act, and provided the Defendant with the interpretation that the exemption provision can only be granted.

F. Accordingly, on August 17, 2011 and August 18, 2011, the Defendant imposed and notified the Plaintiffs of acquisition tax, registration tax, local education tax, and additional tax (the total amount of KRW 13,869,695,737,760 + the additional tax of KRW 3,451,957,970 + the additional tax of KRW 3,451,97,970) as stated in attached Table 1 on the grounds that the Plaintiffs’ acquisition of the instant real estate without obtaining approval of the creation plan was not eligible for reduction or exemption pursuant to the reduction provision (hereinafter collectively referred to as “instant disposition”).

G. The Plaintiffs appealed and filed a tax appeal on October 28, 201, but the Tax Tribunal dismissed all the Plaintiffs’ claims on June 21, 2012.

H. On January 20, 2011, the Governor of Gangwon-do approved the creation plan for the instant tourism complex as the project implementer and publicly notified the following (No. 201-34 of the Gangwon-do Notice).

I. On February 15, 2013, the court of first instance sentenced the revocation of the imposition of each additional tax on the instant disposition. On March 18, 2013, the Defendant again imposed and notified the Plaintiffs of the same kind and amount of additional tax as before and attached a separate sheet stating the grounds for calculation of additional tax by type (hereinafter “instant imposition disposition of additional tax”), and attached the separate sheet stating the grounds for imposition of additional tax by type (hereinafter “instant imposition disposition of additional tax”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, 8, 9, Eul evidence Nos. 1, 2, 4, and 5 (including the number of branches; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

(1) Whether the implementer of a tourism complex development project constitutes

In relation to a tourism complex development project, Article 54 of the Tourism Promotion Act only uses the term "tourism complex developer" in Article 54, and does not separately define the term "tourism complex development project implementer" in Article 55, and Article 54(1) of the Restriction of Special Local Taxation Act amended a person eligible for acquisition tax related to a tourism complex development project from January 11, 201 to "project implementer pursuant to Article 55(1) of the Tourism Promotion Act". In light of the content of the relevant statutes and the history of amendment, etc., interpreting the term "tourism complex development project implementer" as "private developer who is a private developer carrying out business related to the development of a tourism complex" as "tourism complex development project implementer" in Article 54 of the Tourism Promotion Act or the purpose of legislation of the reduction or exemption provision that intends to promote a tourism business as the end of the day, and instead, interpreting the term as "private developer who is a private developer carrying out business related to the development of a tourism complex" as well as the above interpretation for the purpose of tax evasion.

(2) Violation of the principle of trust protection.

According to the conclusion that the plaintiffs were eligible for reduction or exemption provisions, the defendant accepted the plaintiffs' application, and actively participated in this process. This was expressed that the plaintiffs would be eligible for reduction or exemption of local taxes, and the plaintiffs trusted this and carried out the tourism complex development project without going through the approval procedure of the development plan. Thus, the disposition of this case is against the principle of trust protection.

(3) Illegality of imposition of penalty tax

Even if the real estate of this case is not subject to reduction or exemption provisions, it was difficult to expect that the plaintiffs themselves would not be subject to reduction or exemption provisions due to unclear legislation, and thus, it constitutes a case of significance in tax interpretation. This part of the interpretation is attributable to the defendant who erroneously reduced or exempted local taxes. In particular, in the case of penalty tax for failure to report, the obligation to report is fully fulfilled, and thus, the defendant's imposition of penalty tax on the plaintiffs is in violation of law.

B. Relevant statutes

Attached Form 2 is as listed in the relevant statutes.

C. Determination

(1) Whether there is a reason for the measure

The principle of no taxation without law cannot be expanded or analogically interpreted without reasonable grounds. However, if it is necessary to clarify its meaning through the interpretation between the laws and regulations, it is inevitable to conduct a combined interpretation in consideration of the legislative intent and purpose, etc. to the extent that it does not undermine the legal stability and predictability pursued by the principle of no taxation without law (see Supreme Court en banc Decision 2008Du150, Jul. 21, 201; Supreme Court Decision 2008Du150, Jul. 21, 201). In light of the aforementioned facts or the following circumstances revealed in the provisions of the relevant Acts and subordinate statutes, the term “tourist complex development project implementer under the Tourism Promotion Act” under the provision of tax reduction or exemption refers to a project operator who obtained approval of a development plan under Article 54 of the former Tourism Promotion Act (amended by Act No. 9527, Mar. 25, 2009) as well as designation of a tourism complex, and it is reasonable to deem that acquisition tax and registration tax are not reduced or exempted pursuant to the provisions of this case.

(A) Article 55(1) of the Tourism Promotion Act is a person who has obtained the approval of a development plan or the Governor of a Special Self-Governing Province who has formulated a development plan is referred to as a “project operator”. The said provision is the only provision that defines the term “project operator” or “project operator.”

(B) Article 110-3(2)14 of the former Local Tax Act (amended by Act No. 4415 of Dec. 14, 191) provides that a project implementer under the Tourism Promotion Act shall be exempted from acquisition tax on “land and its fixtures acquired for a tourism complex development project” and Article 128-2(2)14 of the same Act provides that a project implementer under the Tourism Promotion Act shall be exempted from registration tax on “registration of land and its fixtures acquired for a tourism complex development project”. However, the reduction provision leads to the above provisions.

(C) Article 55(2) of the Tourism Promotion Act explicitly provides that “If land necessary for a development project is purchased with the approval of the Mayor/Do Governor prior to the approval of the development plan to promote the development of tourist destinations, etc., the land shall be deemed to have been purchased as a project operator.”

(D) Article 52 of the Tourism Promotion Act only provides for the procedure for designation of a tourism complex, but does not provide for the designation of a person who implements the project at the stage of the designation of a tourism complex (in the case of designation and public announcement of the tourism complex of this case on November 21, 2008, the Gangwon-do Governor designated Plaintiff Large Leisure as a development entity and changed Plaintiff Large Leisure from among the development entities of the designation and public announcement of this case to Plaintiff Large Leisure Holdings, but only it cannot be deemed that he granted a certain status to the Plaintiffs pursuant to Article 52 of the Tourism Promotion Act). In addition, “private developer” under Article 2 subparag. 8 of the same Act refers to an individual or corporation that intends to develop a tourism complex, and “private developer” under Article 54(1) of the same Act refers to a person who prepares a tourism complex development plan and grants such approval. Thus, a private developer or a tourism complex developer cannot be deemed to have granted any specific status or qualification pursuant to the Tourism Promotion Act until he/she obtains approval of the development plan.

(E) The case law also provides a consistent and consistent statement that the object of acquisition tax exemption under Article 110-3 (2) 14 of the former Local Tax Act (amended by Act No. 4415 of Dec. 14, 1991) is not to refer to all things attached to the land which a project executor under the Tourism Promotion Act owns for a tourist complex development project according to the development plan (development plan) but to all things attached to the land until the project executor completes the development project (development plan and the project to implement the development plan) in accordance with the development plan (development plan). The land and things attached to the land already acquired in the course of the implementation of a tourist complex development project (development project), which already developed the tourist facilities, shall be limited to those attached to the land where the use and profit-making has not yet commenced (see Supreme Court Decisions 92Nu13172, Apr. 13, 1993; 93Nu1364, Feb. 25, 1994).

(f) The plaintiff asserts that the "project implementer for a tourism complex development project" and the implementation of a development plan is irrelevant to whether it falls under the "project implementer for a tourism complex development project" and the case of an implementer of an industrial complex development project under Article 16 of the Industrial Sites and Development Act, a project implementer under the Act on Special Cases concerning Support of Technoparks, a project implementer for a facility for the collective location of venture businesses under the Act on Special Measures for the Promotion of Venture Businesses, and a project implementer for a logistics complex under the Act on Special Measures for the Development and Management of Logistics Facilities. Since each of the above project implementer is a person who has been granted specific status to implement each project after being designated by a designating authority under each relevant

(G) Article 110-3 (2) 9 of the former Local Tax Act (amended by Act No. 3910 of Dec. 31, 1986) provides that acquisition tax shall be reduced for “land acquired by an implementer of a tourism complex development project under the Tourism Complex Development Promotion Act for a tourism complex development project.” Article 128-2 (1) 14 of the same Act provides that an implementer of a tourism complex development project under the Tourism Complex Development Promotion Act shall be exempted from registration tax for “registration of land and things attached thereto acquired for a tourism complex development project”. However, Article 2 subparag. 1 of the former Tourism Promotion Act (amended by Act No. 3910 of Dec. 31, 1986) provides that an implementer of a tourism complex development project under Article 110-3 (2) 2 of the former Local Tax Act shall be determined as a site for subdivision and development of a tourism complex according to the tourism complex development plan or a tourism complex development plan under the former Tourism Promotion Act (amended by Act No. 39160 of the former Tourism Promotion Act). 196.

(2) Whether the principle of trust protection is violated

In general, in administrative legal relations, in order to apply the principle of the protection of trust in the act of an administrative agency, ① an administrative agency must express a public opinion that is the subject of trust to an individual, and there is no reason to assume the individual's responsibility when such an opinion is justified; ② an individual should have trusted the expression of that opinion and conducted any act based on it; ③ an administrative agency should have conducted any act contrary to its own opinion, thereby causing an infringement on the individual's trust in the opinion; and ③ if any administrative disposition satisfies such requirements, it is against the principle of the protection of trust unless it is likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decisions 98Du19070, Mar. 9, 199; 2004Du466, Jun. 9, 2006).

Meanwhile, a determination as to whether an administrative agency expressed a public opinion is not necessarily based on the formal division of authority of an administrative organization, and it is reasonable to interpret the principle of non-taxation based on the following: (a) the status and duties entrusted by a person in charge to the organization; (b) specific circumstances leading to such speech and behavior; and (c) likelihood of other party’s trust (see Supreme Court Decisions 96Nu18380, Sept. 12, 1997; 2006Du10931, Jan. 17, 2008; 2006Du10931, Jan. 17, 2008; or (b) the other party’s personal fault is due to an unlawful act, such as concealment of facts or fraud; or (c) the other party’s absence of such an unlawful act; and (d) the existence of a cause attributable is determined on the basis of a non-taxation or non-taxation declaration by the tax authority (see Supreme Court Decision 2012Du19316, Nov. 8, 2019, 2001.

According to the above evidence and non-party 1's testimony of the witness of the trial court, the finance division and the chief of the finance division belonging to Hongcheon-gun, Hongcheon-gun, that "if the non-party 1, who is an employee of the plaintiff Hongcheon-gun, is a development entity, it is possible to grant reduction or exemption." The defendant accepted the plaintiffs' application based on the reduction or exemption clause several times, and the defendant prepared and issued a written confirmation of reduction or exemption of registration tax on the plaintiff's application for reduction or exemption of registration tax, and the defendant stated the reasons for reduction or exemption of registration tax. However, in light of the above legal principles, it is difficult to view that the guidance of the chief of the division is merely a mere provision of information or a general consultation on the provision of reduction or exemption of registration tax of the administrative agency, and it is also difficult to view that the administrative agency has expressed a public opinion that the defendant prepared and issued the plaintiffs' application for reduction or exemption of registration tax.

In addition, the case holding that it is difficult to find that the plaintiffs' legal advice or investigation on the development plan of the tourism complex is not reasonable, since the Gangwon-do originally sent the public notice of approval for the designation of the tourism complex to the plaintiff Grand Leisure around November 21, 2008 by taking into account the following facts: "The project implementer shall comply with the procedures for approval of the development project under the Tourism Promotion Act and the consultation with related departments so that the project can be implemented without delay according to the development plan under the designation application," the acquisition tax and registration tax are reduced or exempted by many cases after the designation of the tourism complex, such as △-ri, △△, △△△△, △△△△, etc. after obtaining approval for the development plan after the designation of the tourism complex; the plaintiffs' designation of the tourism complex in this case and affairs related to the reduction of or exemption from local tax, etc. related to the development project of the tourism complex in this case; and the plaintiffs' legal advice or investigation on the development plan of the tourism complex in this case, etc., which is a legal consultation or consultation.

(3) Whether the imposition of additional tax is lawful

Under the tax law, where a taxpayer violates various obligations, such as a tax return and tax payment, as prescribed by the Act without justifiable grounds in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, the taxpayer’s intention or negligence is not considered, and the site, error, etc. of statutes does not constitute justifiable grounds that do not constitute a violation of the duty (see, e.g., Supreme Court Decisions 2002Du10780, Jun. 24, 2004; 2005Du10545, Apr. 26, 2007; 2007Du3107, Apr. 23, 2009; 2007Du3107, Jun. 23, 2009). In addition, even if a taxpayer fails to perform his/her duty to report and pay by reliance on the nominal explanation of a tax official, such reasons alone do not constitute justifiable grounds (see, e.g., Supreme Court Decision 200Nu415394, Apr. 29, 294097.

Considering the above facts in light of the above legal principles, it cannot be deemed that there exists a justifiable reason for the Plaintiffs’ failure to report and pay obligations. The Plaintiffs’ failure to report is the “tax amount” calculated by applying the tax rate to the tax base of the taxable object acquired, and it is apparent that it is the same amount as the tax amount to be paid in accordance with the language and text of the relevant provisions. As such, the Plaintiffs’ filing of acquisition tax and registration tax returns can not

3. Conclusion

Therefore, all of the plaintiffs' claims are dismissed without merit. Since the part concerning the principal tax in the judgment of the court of first instance is just in conclusion, the plaintiffs' appeal is dismissed, and additional claims are dismissed in the trial. The costs of appeal and the costs of appeal incurred by adding claims in the trial are to be borne in full by the losing parties.

[Attachment]

Judges Han-chul (Presiding Judge) (Presiding Justice)

Judges who are unable to sign and seal by long-term overseas training;