early 2012 Middle 1003 ( November 05, 2012)

Any disposition that is imposed on a real estate or non-business land not directly related to the business of a corporation is legitimate.

Considering the circumstances cited by the Plaintiff and the materials submitted by the Plaintiff, the disposition imposing corporate tax is legitimate on deeming the real estate not directly related to the business as it is difficult to view that the use of the land for business purposes is prohibited or restricted by the corporate tax-related provisions after acquiring the land under the corporate tax-related provisions, or because it is difficult to

Article 27 of the Corporate Tax Act; Article 49 of the Enforcement Decree of the Corporate Tax Act

Article 26 of the former Enforcement Rule of Corporate Tax Act

2013Guhap523 Revocation of Disposition of Corporate Tax Imposition

AA Industry Development Corporation

The director of the Southern Incheon National Tax Office

December 19, 2013

January 16, 2013

1. The plaintiff's claim is dismissed.

2. Litigation costs are borne by the Plaintiff.

The defendant's disposition of imposition of corporate tax for the business year 2008 against the plaintiff on November 10, 201, the disposition of imposition of corporate tax for the business year 2009, the OOO of the business year 2009, the OO of the business year 2010, and the OO of the corporate tax for the business year 2010 is revoked.

1. Details of the disposition;

On January 31, 2002, the Plaintiff acquired real estate newly built, sold, sold, rented, etc., and on January 31, 2002, the Plaintiff acquired from the BB Land Development Corporation abbb Dong Xxxxxxx 5,517.6m2 (hereinafter referred to as “instant land”).

B. On January 50, 2007, the defendant's acquisition of the land in this case, deemed that the plaintiff did not directly use the land for business without justifiable grounds until January 50, 2007, and the five years have passed since the acquisition of the land in this case, and thus, pursuant to Article 27 subparagraph 1 and Article 28 (1) subparagraph 4 (a) of the Corporate Tax Act and Article 28 (1) 4 (a) of the Corporate Tax Act, the defendant excluded the maintenance expenses and the interest paid for the land in this case from the 2007 to the 2010 business year, and corrected and notified the corporate tax for the business year 2007, the corporate tax for the business year 2008, the corporate tax for the business year 2009, and the OOO for the business year 2010, and the OO for the business year 2010.

C. On January 5, 2012, 2012, the Plaintiff appealed and filed an appeal with the Tax Tribunal, and on November 5, 2012, the Tax Tribunal issued a conditional resolution at the Traffic Impact Assessment Committee on January 12, 2007 to change it again to a special hotel on October 2, 2008, on the ground that "it appears that it would be in accordance with the decision of the KRDo Governor rather than the Plaintiff's voluntary intention" and corrected the tax base and amount of tax by excluding from non-business-related real estate for the period from January 31, 2007 to October 2, 2008, and accordingly, it was corrected that the Defendant reduced the total amount of OOO of corporate tax for the business year 2007 and OOO won from corporate tax for the business year 2008.

[Based on Recognition] The facts without dispute, Gap evidence to 4, and Eul evidence to l to 3 (each numbering box), and the whole purport of the pleading

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff had undergone the procedure for deliberation, such as construction design and traffic impact assessment, in order to newly build a hotel on the instant land, and the time was required for the deliberation of traffic impact assessment by administrative agencies, and the Plaintiff was faced with difficulties to be subject to seizure of major documents in the prosecution investigation process three times against the Plaintiff, and the instant land was not used for business within a five-year grace period under Article 26(1)1 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 325, Feb. 23, 2013; hereinafter the same). Therefore, the Defendant’s disposition was unlawful for the Plaintiff to regard the instant land as non-business real estate.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

A) On July 22, 2004, the Plaintiff entered into a design agreement on the instant land with d architect office (b) and d architect office (b), 4 underground floor, general hotel, etc., and with the total floor area of 52,266 square meters.

B) On February 4, 2005, the Plaintiff submitted a traffic impact assessment report at Aa City (traffic administration department) as a prior procedure for filing an application for a building permit in accordance with the Urban Traffic Improvement Promotion Act, and responded that it is difficult for AA City to cancel one-way traffic on condition that the assessment report is cancelled on one-way traffic, the Plaintiff re-established and submitted a traffic impact assessment report on September 6 of the same year.

C) On October 5, 2005, the City/Do requested on October 5, 2005, KR(traffic Policy) to request for a traffic impact assessment with a review of the following contents attached thereto, and on October 14 of the same year, KR requested on November 17 of the same year to review whether it is possible to approve the project in accordance with the urban planning ordinance of the City/Do, and on November 17 of the same year, KR(general accommodation) for the purpose designated in accordance with Article 7 (Special Provisions on Restriction on Acts in District Unit Planning and Utilization in District Unit Planning Zone) of the Addenda to the Enforcement Decree of the National Land Planning and Utilization Act (Special Provisions on Restriction on Acts in District Unit Planning and Utilization in District Unit Planning Zone) to review whether it is possible to approve the project.

In accordance with the provisions of Article 71 and Article 37 (1) 8 of the Enforcement Decree of the National Land Planning and Utilization Act and Article 37 (1) 8 of the Urban Planning Ordinance, a hotel, other than a tourist hotel, shall not be allowed to be interrupted unless it is interrupted by a park, a green area, or a topographical feature, where the site is located within 300 meters from a residential area.

The width of the entrance lamps for underground parking lots shall be secured at least 4m in a straight line width standard, and vehicles entered into the center part of the underground floor shall be made to the following floor if there is no parking space, and there is a confusion that the vehicle can enter the center part of the underground floor at least twice, and the need to reorganize the system.

· A network for securing speed lines of at least 3 meters in width to facilitate traffic in vehicles.

The incidental facilities to the hotel on the ground and above may create a demand for parking, and it shall be calculated and predicted by clarifying detailed uses.

It is planned that the plane of the accommodation is not a hotel but a plane of the residential multi-family housing, and it is planned in general (commercial) tourist hotel plane.

It is problematic that similar facilities used in estimating the demand for parking by the original law (two places of field survey) are calculated in comparison with this case on a small scale in its scale, and similar ones shall be compared by re-examination of the scale.

. Installation of signal lights (Warnings, etc.), closure and expansion of on-road parking lots, installation of bus stops or bus stops, examination of installation of cameras for eradicating illegal parking vehicles, and examination of installation of traffic safety facilities, etc.

D) On November 29, 2005, KRdo notified the Plaintiff of the opinion on the review of the traffic impact assessment report with the following contents of the traffic impact assessment report: (a) on November 29, 2005, KRdo demanded that the Plaintiff (project executor) prepare and submit a preliminary review report reflecting the results thereof; and (b) on a Si (approval Agency) on the basis of different opinions from the content of the preliminary review supplementary report, it responded to the request for submission

In accordance with the provisions of Article 8 of the Building Act, prior approval from the Do Governor shall be obtained.

A review of the appropriateness of the separation distance (construction plan) with the intersection of the entrance and exit zone.

Since the arrangement type, etc. of guest rooms are in the form of officetels or residential facilities rather than the concept of accommodation, accurate evaluation is likely to be reviewed in conformity with the relevant statutes, and after confirmation by the authorizing and permitting department, it is necessary to review whether it complies with the relevant statutes and attach (traffic policies) written notice to consultation.

· It is desirable to take and present measures to actively improve external traffic on the “FF” level of services for future street and intersections (traffic policies).

The prediction of and demand for similar facilities shall be reviewed to review the degree of similarity of similar facilities and reflect them in the evaluation (traffic policies) in an appropriate scale.

Since the adverse impact on the surrounding areas due to the high-populated development in a relatively narrow space is likely to be likely to be affected, measures to reduce the occurrence of traffic shall be prepared and presented (transport policies).

Measures to handle traffic during construction is necessary to examine in detail the traffic safety measures for children such as prohibition of traffic of construction vehicles on school routes (traffic policies).

In order to ensure the proper meeting competition by examining the entry movement bus system in consideration of the characteristics of the business and the operation (traffic policy).

Improvement (traffic Policy) to ensure that the space and air space of the Deputy Commissioner of the boarding and a taxi that can cope with demand for taxi does not interfere with the communication of surrounding areas due to long-term taxi atmosphere by securing the air space within the business area (traffic policy).

In order to ensure the safe and smooth entry, it is suggested to secure additional marbblights and marblights (traffic policies).

In consideration of the characteristics of the use of large-scale hotel facilities, the method of expanding the size, etc. of a lot shall be reviewed to facilitate parking of large-scale passenger vehicles (transport policies), etc.

(E) On September 29, 2006, the Plaintiff submitted a preliminary review and supplementary report on the traffic impact assessment at 10 m3 m2, and on September 18, 2005 at 10 m3 m2, and at 20 m3 m3 m3, m3 m3 m3 m3 m3 m3 m3 m3 m3 m3 as a result of the preliminary review and supplementary report (2005 m3 m3 m3 m3 m3 m3 m3 m3 m3 m3 m4 m3 m3 m3 m3 m3 m3 m3 m4 m3 m3 m3 m3 m3 m4 m3 m3 m3 m4 m3 m3 m3 m3 m4 m3 m3 m3 m3 m3 m3 m3 m3 m3 m3.

G) On December 14, 2007, the Plaintiff applied for a permission to construct a hotel at the time of Aa, and Aa City applied for a prior approval on the construction permission to Kdo on December 10 of the same year, and, according to the decision that Kdo Construction Deliberation Committee held on January 10, 2008 to review the purpose of the hotel to be newly built on the instant land in compliance with the standards of "special-class hotel", the Plaintiff changed the purpose of the hotel to a special-class hotel, submitted a traffic impact assessment report again, and on August 14 and September 10, 2008, KDo Do Do Do 2, which was held on December 14 and September 10, 2008, was decided as a conditional price (79,544.13 square meters of the total floor area of the building) at the Transport Impact Deliberation Committee.

H) On October 2, 2008, the Plaintiff notified of the above conditional decision from KRdo, as to October 2, 2008, changed the total floor area constructed on March 2, 2009 to 79,531 square meters, requesting the preparation of a design plan for the special-level hotel, and requesting the Korea Transportation Policy Institute for traffic impact assessment on April 2 of the same year.

I) Meanwhile, the Plaintiff did not obtain a construction permit for a hotel to be newly built on the instant land until now (as of November 13, 2012, the Plaintiff submitted a proposal for an amendment to urban planning at the time of a on September 27, 2013 and was determined as “original advice” (as of September 27, 2013).

[Based on Recognition] The non-contentious facts, Gap evidence Nos. 4 through 36, and Eul evidence Nos. 3, 4, 6 through 15, and the result of each fact inquiry into the K Do Governor and the K Do Governor of this Court, and the purport of the whole pleadings

2) Relevant legal principles

According to Article 27 of the Corporate Tax Act, the proviso of Article 49 (1) 1 of the former Enforcement Rule of the Corporate Tax Act, and Article 26 (5) 29 of the former Enforcement Rule of the Corporate Tax Act, real estate not used for business due to the "justifiable cause, such as the alteration of urban planning after acquisition of the real estate," is excluded from assets for non-business use. The term "justifiable cause" in this context includes not only external reasons that the corporation cannot use in its business but also internal reasons that the corporation has made normal efforts to use in its business, such as prohibition, restriction, etc. under Acts and subordinate statutes, but also internal reasons that the grace period has passed since there is no time to time, and the determination of whether there is a justifiable reason should be made by taking full account of the legislative intent of which the holding of non-business real estate as the requirement of non-taxation of interest paid to the corporation's borrowings, and whether the corporation is a profit-making corporation or a non-profit corporation, and whether the corporation has made efforts to use it in its business (see, e.g., Supreme Court Decision 20002.

D. Determination

In light of the above legal principles, considering the above facts, the above facts, and the records and arguments of this case, it is difficult to see that the plaintiff has justifiable grounds for not using the land of this case for business after October 2, 2008, and there are no other evidence to acknowledge them otherwise, even after considering the circumstances and materials presented by the plaintiff.

A) On July 22, 2004, after acquiring the instant land, the Plaintiff requested the construction design of the hotel to be newly built on the instant land, and submitted a traffic impact assessment report at Aa on February 4, 2005, for which approximately three years have passed since it acquired the instant land.

B) In the review of the traffic impact assessment conducted by a City/Do or KKdo (Documents attached to the reply of November 29, 2005), the contents of the traffic volume, traffic flow, and traffic safety, such as traffic safety measures for the traffic safety of children, and vehicle traffic flow and traffic safety, are most of the review opinions, even though the matters pointed out about the use of the building or the arrangement type of guest rooms 10.5, and the above recognition facts indicate the appropriateness of entry, parking demand, parking number, traffic signal lights, traffic safety facilities, traffic safety facilities, traffic volume reduction measures, and vehicle traffic safety measures, and vehicle traffic flow and traffic safety, such as vehicle traffic flow, are most of the review opinions. Therefore, it is difficult to see that the above consultation on traffic impact assessment has been unduly delayed due to the point of the use of the building or the arrangement type of guest rooms as alleged by the Plaintiff.

(C) A) K was submitted on October 9, 2006, for which almost one year has elapsed since K had requested K to submit a traffic impact assessment supplementary report, but it appears that it was due to the Plaintiff, who was responsible for drawing up and submitting a preliminary review supplementary report, and that it was the shipment at Aa on September 29, 2006.

D) Therefore, it is difficult to see that KR is responsible for a Si/a other than the Plaintiff for the submission of a prior review and supplementary report on October 31, 2006 on the grounds that KR has made a prior review and supplementary report after the lapse of one year from the date on which it requested consultations on October 31

E) On January 10, 2008, KRdo Building Committee requested a review of hotel standards in compliance with special hotel standards and excluded the Plaintiff from the period of delay (til October 2, 2008, the Plaintiff was notified by KRdo Transport Impact Deliberation Committee that he/she was subject to conditional decision by KRdo Transport Impact Deliberation Committee) for the reason that it was not used for business due to justifiable reasons, and that it was not used for business and for the period deemed as related real estate.

F) The plaintiff alleged that it was difficult for the prosecutor to carry out the project by seizing major documents during the prosecutor's investigation process around December 2003 and around June 2005, and around May 2008, but there is no evidence to support that the plaintiff was seized major documents related to the promotion of the hotel, and the plaintiff submitted a hotel design contract and a traffic impact assessment report around July 2004, and finally submitted a traffic impact assessment report at around May 2005, and finally notified by KDo of conditional measures for traffic impact assessment at around October 2008, it does not seem that the prosecutor's investigation was likely to interfere with the promotion of the project.

G) In around 2009, the Plaintiff changed the total floor area of the Plaintiff and re-requested the design plan and traffic impact assessment for the special-class hotel, and the Plaintiff did not receive a building permit for the hotel until now.

Therefore, we cannot accept the plaintiff's assertion that there are justifiable grounds for not using the land of this case for business.

3. Conclusion

Then, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.