[1] The case holding that a hospital operated by the operator of the nursing junior college constitutes a taxable object of business office tax

[2] The meaning of "the interpretation of tax-related Acts or practices in tax administration, which are generally accepted by taxpayers" under Article 18 (3) of the Framework Act on National Taxes, and the elements for establishing such "non-taxable practices"

[3] The case holding that since since the introduction of the business office tax, in a case where, without imposing the business office tax on the hospital operated by the operator of the nursing and junior college for over twenty years, an attempt to impose the business office tax on similar cases by another neighboring tax authorities for a long time, continues to maintain the non-taxable measures, it can be deemed that the non-taxable intent of business office tax was explicitly expressed, it can be deemed that the "non-taxable practice" under Article 1

[4] Whether a tax authority’s disposition to correct past words and actions in the future violates the principle of trust and good faith or the principle of prohibition of retroactive taxation (negative)

[1] The case holding that a hospital operated by the operator of the nursing junior college constitutes a "profit-making business prescribed by the Presidential Decree" under the proviso of Article 245-2 (1) 1 of the Local Tax Act, and that is not provided as a "other non-taxable business operator" unlike the "medical school affiliated with the nursing junior college" under subparagraphs 1 and 2 of Article 209 of the Enforcement Decree of the Local Tax Act, the hospital operated by the operator of the nursing junior college cannot be viewed as a "other non-taxable business operator" under the principle of tax equity, and therefore, it cannot be viewed that the relevant provision should be interpreted to apply the non-taxation

[2] Article 18(3) of the Framework Act on National Taxes provides that “an interpretation of the tax-related Act or practices in tax administration accepted by a taxpayer generally” refers to a wrongful interpretation or practice that is accepted by an unspecified general taxpayer, who is not a specific taxpayer, without any objection, to the extent that it is not unreasonable for the taxpayer to trust such interpretation or practice. In order to establish such non-taxation practice, there is an objective fact that has not been imposed over a considerable period of time, and the tax authority must have an intention not to impose tax due to any special circumstance even though it knows that the tax can be imposed on the matter, so the above public opinion can also be acknowledged in a case where the situation of non-taxation continues over a long period of time, and it can be seen as an implied expression of the tax authority’s implied intent to the effect that the matter is not subject to taxation.

[3] The case holding that since since the introduction of the business office tax for 20 years or longer, without imposing the business office tax on the hospital operated by the operator of the nursing and junior college, in case where the non-taxable measures continue to be maintained in compliance with the purport of the revocation of the disposition of the business office tax in the objection procedure or in the procedure for the examination request, it can be seen that the non-taxable business office tax was established under Article 18 (3) of the Framework Act on National Taxes, since it can be seen that the non-taxable business office tax had been explicitly expressed in consideration of the educational role of the operator, etc.

[4] The taxation authority’s disposition to correct the past speech and behavior in the future does not violate the principle of good faith or the principle of prohibition of retroactive taxation.

[1] Article 245-2 (1) 1 and 5 of the Local Tax Act, Article 78-2 (1), Article 208 (1), and Article 209 (1) and 2 of the Enforcement Decree of the Local Tax Act / [2] Article 18 (3) of the Framework Act on National Taxes / [3] Article 18 (3) of the Framework Act on National Taxes, Article 245-2 (1) 1 and 5 of the Local Tax Act, Article 78-2 (1), Article 208 (1), and Article 209 (1) and 2 of the Enforcement Decree of the Local Tax Act / [4] Articles 15 and 18 (3) of the Framework Act on National Taxes

[2] Supreme Court Decision 81Nu266 delivered on December 26, 1984 (Gong1985, 251), Supreme Court Decision 2000Du1652 Delivered on February 8, 2002 (Gong2002Sang, 701), Supreme Court Decision 2001Du7855 Delivered on September 5, 2003 (Gong2003Ha, 2031), Supreme Court Decision 2001Du403 Delivered on September 5, 2003 (Gong2003Ha, 2026) / [4] Supreme Court Decision 92Nu5478 Delivered on February 12, 1993 (Gong193Sang, 1017)

Plaintiff (Attorney Seo-soo et al., Counsel for the plaintiff-appellant)

Head of Busan Metropolitan Government

Busan High Court Decision 2008Nu1313 decided August 13, 2008

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws shall be interpreted as the text of the law unless there are special circumstances, and it shall not be extensively interpreted or analogically interpreted without reasonable grounds (see Supreme Court Decision 2001Du5521, Jul. 26, 2002, etc.).

According to the reasoning of the judgment below, even if the plaintiff is a non-profit entrepreneur under the main sentence of Article 245-2 (1) 1 of the Local Tax Act as the operator of ○○ University, which is a three-year nursing junior college, the court below determined that the plaintiff's main purpose and duties are related to the business of the hospital, which is a profit-making business, and thus excluded from the object of non-taxation from the business place tax.

Article 245-2 (1) 1 of the Local Tax Act provides that business place tax shall not be imposed on a non-profit entrepreneur prescribed by the Presidential Decree, but this shall not apply to the business place tax related to the "profit-making business prescribed by the Presidential Decree". Article 208 (1) of the Enforcement Decree of the Local Tax Act provides that "profit-making business prescribed by the Presidential Decree" refers to business under the provisions of Article 78-2 (1) of the Enforcement Decree of the Local Tax Act. Article 78-2 (2) 1 of the Enforcement Decree of the Local Tax Act provides that exceptions to medical business operated by medical schools, etc. established under Article 4 of the Higher Education Act shall not be regarded as business for profit-making business. On the other hand, Article 209-2 (1) 5 of the Enforcement Decree of the Local Tax Act provides only the national university hospital and its affiliated university's affiliated university's affiliated hospital, including △ University and its affiliated university's affiliated hospital, and therefore, Article 208-2 (1) of the Enforcement Decree of the Local Tax Act provides for the above legal principles.

In addition, in the imposition of business office tax, such as the necessity and proportion of hospitals attached to medical colleges cannot be simply compared to those of the nursing junior colleges, it cannot be deemed that the hospitals operated by the medical school affiliated with the medical school and the nursing junior colleges should be treated equally. Therefore, in the principle of tax equity, it cannot be said that the relevant provisions should be interpreted to apply the non-taxation provision of business office tax to the hospitals operated by the operators of the nursing junior colleges as well as the hospitals affiliated with the medical school. Therefore, the judgment of the court below on this part is just, and there is no error in the misapprehension of legal principles as to the taxation principle like the grounds for appeal.

2. As to the third ground for appeal

Article 18(3) of the Framework Act on National Taxes provides that “an interpretation of tax-related Acts or practices in tax administration accepted by a taxpayer generally” refers to a wrongful interpretation or practice that is accepted by a general taxpayer who is not a specific taxpayer without any objection to the extent that it is not unreasonable for a taxpayer to trust such interpretation or practice. In order to establish such non-taxable practice, there is an objective fact on which taxes are not imposed for a considerable period of time, and the tax authority must be aware that it is possible to impose taxes on the matter, and such public opinion is not imposed on the tax authority. The above public opinion can also be recognized in cases where the situation of non-taxation continues over a long period of time, and it can be seen as an implied expression of the tax authority’s implied intent not to impose taxes on the matter (see, e.g., Supreme Court Decisions 81Nu266, Dec. 26, 1984; 200Du65275, Feb. 8, 2002; 2005Du75785, Mar. 27, 20005).

According to the reasoning of the judgment below, the court below rejected the Plaintiff’s assertion that the Defendant’s business place tax system was established in non-taxable practice since 1977 to 2006 due to the Defendant’s failure to impose only once the business place tax on ○ Hospital for a period of 20 years from 1977 to 2006, and rejected the Plaintiff’s claim seeking revocation of the disposition of the business place tax of this case.

However, in light of the above legal principles, it is difficult to accept the judgment of the court below for the following reasons.

According to evidence, etc. adopted by the court below through legitimate examination of evidence, the plaintiff was a school foundation that established ○○ University, a junior college, around 1968, and operated ○○ Hospital, Busan ( Address 1 omitted) since then, the first introduction of the Local Tax Act as amended by Act No. 2945 on December 31, 1976. While the "medical business" was prescribed as non-taxable business operator at the time of its introduction, the person who operated ○○ University, etc. was exempted from taxation on the person who operated ○○ University, etc., such as hospital, because the provision was deleted for non-taxation on December 31, 1981 at the time of its amendment of the Local Tax Act and the Enforcement Decree of the Local Tax Act, and the head of Busan City/Do office tax was excluded from taxation on the person who operated ○○ University, etc., such as △△ University, on December 31, 191, which was operated by the head of Busan City/Do 198.

Examining the above facts in light of the above legal principles, the defendant continued to maintain non-taxation measures in accordance with the purport of revoking the disposition of the business office tax in the procedure of filing an objection or in the procedure of requesting examination without taking such measures, even though he attempted to impose the business office tax on ○○ Hospital operated by the plaintiff for over 20 years, since the introduction of the business office tax, the defendant did not take such measures for the similar cases of the neighboring tax authorities during the long-term non-taxation period. Therefore, it is reasonable to deem that the defendant maintained the status of non-taxation for a long time in light of the educational role of the plaintiff in the operation of the nursing junior college, and therefore, it can be seen that the non-taxation practices have been

Meanwhile, inasmuch as the tax authority’s correction of past speech and behavior and disposal of it in the future do not violate the principle of good faith and the principle of prohibition of retroactive taxation (see Supreme Court Decision 92Nu5478, Feb. 12, 1993), as seen earlier, the Defendant may impose the business office tax on ○○ Hospital subject to taxation of the business office tax under the related Acts and subordinate statutes in the future. If the Defendant’s closing use of the business office tax report to the Plaintiff from around 2003 constitutes a public opinion expressed by the public opinion to correct the non-taxation words and behavior of the business office tax, then the latter portion of the business office tax is lawful notwithstanding the establishment of non-taxation practice.

Therefore, the court below rejected the plaintiff's assertion on the ground that the defendant did not impose the business place tax on ○○ Hospital, the circumstances or developments leading up to the failure of the report of the business place tax on 2003, specific methods for the close use of the business place tax, and the situation of the imposition of the business place tax on similar cases, etc. should be examined more closely, but it did not complete such a deliberation, but did not complete such a deliberation, and therefore, it did not err by misapprehending the legal principles on non-taxation practices, which affected the conclusion of the judgment. Therefore, the ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Young-chul (Presiding Justice)