208Guhap17660 Revocation of Disposition of Imposition of Property Tax, etc.

○ ○

The head of Mapo-gu Seoul Metropolitan Government

April 2, 2009

April 30, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

On September 10, 2007, the Defendant revoked the disposition of imposition of KRW 14,82,542 out of KRW 15,82,542 out of KRW 83, 208, 450, urban planning tax of KRW 17,563, 70, and KRW 17,563, and KRW 14,831, and 178 out of KRW 70, and local education tax of KRW 16,641, and KRW 692.

1. Details of the disposition;

A. The Plaintiff is a school foundation that establishes and operates the ○ University, the elementary, middle, high schools, and kindergartens, etc. attached to the ○ University. On November 28, 2006, the Plaintiff acquired the ownership of the land of the 8m square meters (hereinafter “instant land”).

B. On June 1, 2007, the property tax assessment basis date, the Defendant determined that the instant land was not used directly for the educational business, and thus does not constitute real estate subject to non-taxation under subparagraph 1 of Article 186 of the Local Tax Act, and imposed property tax (land) on the instant land and other land owned by the Plaintiff, KRW 86, 103, 940, and KRW 19,224, 980, local education tax, KRW 17,220,780, and KRW 83,208, KRW 450, KRW 17, 563, KRW 70, KRW 60, KRW 60, and local education tax (hereinafter “instant disposition”).

C. On November 27, 2007, the Plaintiff filed a request for examination with the Minister of Government Administration and Home Affairs against the instant disposition, but the Minister of Government Administration and Home Affairs rendered a decision to dismiss the Plaintiff’s request on January 28, 2008.

[Ground of recognition] Unsatisfy, Gap 1-4 evidence, Eul 1 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff uses the instant land as a place for outdoor care training for students of ○ University’s ○ University and a place for natural ecosystem observation of students of its affiliated schools, the instant land constitutes “real estate used directly for educational projects” under Article 186 subparag. 1 of the Local Tax Act, and the neighboring ○○○○○○, including the instant land, is designated as a neighboring official under the former Urban Planning Act, and the Defendant uses and manages the instant land as a park by installing books, sports facilities, etc. on the instant land until now. As such, the instant land is used for public or public purposes and falls under the category of land subject to tax exemption pursuant to Article 185(2) of the Local Tax Act. Even if it falls under the category of the instant land subject to tax exemption, 50/100 of the property tax shall be reduced or exempted pursuant to the Mapo-gu Seoul Metropolitan City Ordinance on Reduction and Exemption of Local Tax Act.

(b) Relevant statutes;

As shown in the attached Form.

(c) Facts of recognition;

(1) On November 28, 2006, the Plaintiff acquired the instant land at approximately KRW 700 meters at a distance of 700 meters from principal school and for the purpose of using it as the site for the building annexed to the school, and reported on April 30, 2007 to the Ministry of Education and Human Resources Development, a supervisory authority, acquired the instant land as the land for education.

(2) From March 2007, the Plaintiff used the instant land from time to time as a natural ecosystem observation place for students in ○ University’s students in the outdoor string school, and students in affiliated schools (see, e.g., no building to be used as a class place or a learning place is actually constructed or any other fixed facility is installed). On September 20, 2007, the Plaintiff filed an application for modification to an urban planning facility (school) with the Defendant to install school facilities on the instant land.

(3) As of June 1, 2007, the tax base date of the instant disposition, the current status of the instant land was 8 lots of land, forest, and 5 lots of land, which are classified into residential areas, sports facilities, and parks. Since the Plaintiff had before acquiring the instant land, the instant land had been installed as a stone fence, a water supplyter, a sports facility (e.g., a sadton, etc.), a sports facility (e., a rest room for rest), a street cleaners’ resting room, a garden, a boom, etc., and an unspecified number of residents had been freely used for sports, resting space, etc.

(4) After acquiring the ownership of the instant land, the Plaintiff demanded the removal of an illegal building by frequently patroling the instant land through its employees, and managed trees of forests and fields, and conducted a boundary survey.

(5) On September 10, 2007, the Plaintiff sent a reply to the Defendant’s request for cooperation to the effect that the said facilities will be installed for the prevention of safety accidents and for the convenience of residents’ use. On March 27, 2008, the Plaintiff requested the Defendant to remove the containers used for street cleaners’ rest in the instant land. As requested by the Plaintiff, the Defendant prepared a substitute site on December 24, 2008, and removed and completed the said containers.

(6) On the other hand, the instant land was designated as a park by the public notice of the Ministry of Construction on February 5, 1966 as an area within the Mapo-gu Seoul Metropolitan Government ○○○○○○○○○○, and was designated as a neighboring park on July 9, 197 by the public notice of the Ministry of Construction and Transportation. From around 2003, the Defendant compiled and executed the budget for the maintenance, repair and improvement of the “○○○ Park” book, the surrounding areas of the medicinalter, the creation of a sports park, and the security, etc., and operated a sports-for-all program, etc. at this point.

(7) On September 25, 2008, when the instant lawsuit was pending, the Defendant corrected the area corresponding to the urban planning facilities (park and sports facilities) among the entire area of the instant land on September 25, 2008, as revealed as a result of re-examination of the area corresponding to the urban planning facilities (park and sports facilities) on August 274, 274, to 30,571 square meters, and on this part, the Defendant did not impose property tax on September 10, 2008 by reducing the property tax, etc. imposed on the instant disposition on September 10, 2008 in accordance with the Mapo-gu Seoul Metropolitan Government Ordinance on Tax Reduction and Exemption. The Defendant corrected the urban planning tax to 17,563,70 won, local education tax to 16,641,690 won, and the local education tax to 690 won on the same day, and on the same day, to the person who was a street cleaners employed by the Defendant as public use.

[Grounds for Recognition] Unsatisfy, Gap 1-15, 19, 21-28, 31, 32, 34-4, Eul 1, 2, 5, 6;

7. Each description or image of evidence 8 to 12, 14, 15 to 17, the purport of the entire pleadings, and the purport of the whole pleadings.

D. Determination

(1) Whether the instant land is directly used for educational projects as of the tax base date

Article 186 subparagraph 1 of the Local Tax Act provides that the same shall not apply to part of the real estate used directly by a non-profit entrepreneur as one of the real estate subject to the property tax exemption according to the usage classification, and where part of the real estate is not used directly for the purpose of the business, the "real estate" is actually used for the non-profit entrepreneur's own business. The "use for the business" should be objectively determined based on the actual use relation by considering the purpose of the non-profit entrepreneur's business and the purpose of the acquisition. The "use for the business" means that the school foundation directly uses the land incorporated into the basic property for the school's own use for the business, such as the land site and the sports place of the private school established and constructed by the school foundation (see Supreme Court Decisions 94Nu224, Oct. 28, 1994; 200Da5384, Dec. 39, 2005, etc.).

In this case, as seen earlier, the Plaintiff acquired the instant land as a site for the original attached school building; and as at June 1, 2007, the tax base date for the Plaintiff’s educational project as of June 1, 2007

In light of the fact that buildings, etc. to be directly used are either constructed or constructed on the instant land or are not under construction or construction, and no building permit or construction work has been made appropriate for the purpose of business, the mere fact that the Plaintiff frequently takes part of the instant land as a place for outdoor care classes for students in ○○ University ○○ School or natural ecosystem observation learning of students in affiliated schools cannot be deemed to have used the instant land directly for the Plaintiff’s educational business, and even if the instant land was not directly used for the purpose of business or was not constructed or constructed, it does not interfere with the foregoing determination, on the grounds that there are any limitation grounds, such as the failure to properly proceed with the procedures for snows, etc., and even if the instant land was not constructed or constructed for the purpose of business, it does not interfere with the foregoing determination.

Therefore, the plaintiff's assertion that the land of this case constitutes non-taxable real estate under Article 186 (1) of the Local Tax Act is without merit.

(2) Whether the instant land is land used by the State, etc. for official or public purposes

Article 185 (2) of the Local Tax Act provides that no property tax shall be imposed on any property used by the State, local government, or local government association for a public use or public use for at least one year. The property used for a public use or public use under the above provision is either the property directly provided by the administrative body for a common use or the property directly provided by the administrative body for its use.

In the case of this case, although the land of this case was decided and announced as a park under the former Urban Planning Act as seen above, it is difficult to view this land as the land of this case immediately being used for public purposes. At least, if the park building plan was decided and the kind of park facilities, the above values, and the scope thereof are determined and specific, it should be used for public purposes or for actual public purposes. In order to promote the convenience and safety of residents' lives as administrative agencies having jurisdiction over the land of this case, the defendant has maintained and maintained the natural production of the land of this case and the vicinity of the medicine sites, and installed a convenient sports facilities, etc. which maintain and repair the budget, and maintain and repair the construction of the budget, and it is difficult to view it as the land of this case to be used for public purposes under the Plaintiff's request, even if the land of this case was provided as a non-taxation measure for the land of this case, the land of this case can not be freely used by the Defendant as the owner of the land of this case, and the land of this case can not be used for public purposes or management after the Plaintiff's.

Therefore, this part of the plaintiff's assertion is without merit.

(3) Determination as to the assertion of reduction or exemption under the reduction or exemption Ordinance

As seen earlier, with respect to the area of urban planning facilities (park and sports facilities), 30,571 square meters, the Defendant determined the amount of property tax on September 25, 2008 in accordance with the Mapo-gu Seoul Metropolitan Government Ordinance on the Reduction and Exemption of Mapo-gu Tax, and subsequently corrected the amount of property tax in the initial disposition of this case. The Plaintiff reduced the purport of the claim pursuant to the Ordinance, and there is no further assertion and proof as to whether there is any portion to be additionally reduced or exempted pursuant to the above Ordinance, and there is no reason to view this portion as well.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge;

Judges Lee Dong-chul

Judges Equitable:

Relevant statutes

▣ 지방세법

Article 185 (Non-Taxation on State, etc.)

(1) No tax shall be levied again on property owned by the State, local governments, local government associations, foreign governments, and international organizations in Korea.

(2) No property tax shall be imposed on any property used by the State, a local government, or a local government association for official or public purposes for at least one year: Provided, That the same shall not apply where it is used for a fee.

Article 186 (Non-Taxation according to Classification of Purposes)

The property tax shall not be imposed on the property as provided in the following subparagraphs (excluding those subject to the taxation under Article 112 (2)): Provided, That this shall not apply to the case where it is used for any profit-making business as prescribed by the Presidential Decree, and a fee is charged for the use of the property, and a part of the property is not used directly for its original purpose, if it is substituted for the property or part of it:

1. Real estate that is used directly by a non-profit business operator prescribed by Presidential Decree for the purpose of religious, religious, charity, academic, art and other public services. In such cases, where a building to be directly used for the relevant business is being constructed and where the construction has not been commenced due to a construction regulation measure by a dedicated agency after the construction permission, the land annexed to the building to be constructed shall be deemed to have been used directly for the relevant business;

Enforcement Decree of the Local Tax Act

Article 136 (Scope of Profit-Making Business)

(2) "Non-profit entrepreneur prescribed by Presidential Decree" in subparagraph 1 of Article 186 of the Act means a non-profit entrepreneur prescribed in Article 79.

Article 79 (Scope of Non-Profit Business Operators)

(1) "Non-profit business operator prescribed by Presidential Decree" in subparagraph 1 of Article 107 of the Act means any of the following persons:

2. A person who operates a school under the Elementary and Secondary Education Act and the Higher Education Act, a foreign educational institution under the Special Act on the Establishment and Operation of Foreign Educational Institutions in Free Economic Zones and Jeju Free International City, or a lifelong educational organization that operates facilities at the time of education under the Lifelong Education Act;

▣ 국토의 계획 및 이용에 관한 법률

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

7 . " 도시계획시설 " 이라 함은 기반시설중 제30조의 규정에 의한 도시관리계획으로 결정된 시설을 말한다 . ▣ 서울특별시 마포구세 감면 조례 ( 제645호 )

Article 9 (Reduction and Exemption for Land, etc. with Restricted Private Rights)

(2) Property tax shall be reduced by 50/100 on the land, housing, and ground (limited to the relevant portion) on which an urban planning facility under subparagraph 7 of Article 2 of the National Land Planning and Utilization Act has not been implemented for a long period of not less than ten years after the topographical map was publicly announced pursuant to Article 32 of the same Act: Provided, That objects of taxation under Article 112 (2) of the Local Tax Act shall be excluded from the end.