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(영문) 대법원 1989. 6. 27. 선고 88누7149 판결
[취득세등부과처분취소][집37(2)특,482;공1989.8.15.(854),1179]
Main Issues

Whether the acquisition by succession of a factory excluded from taxation subject to heavy taxation under the Local Tax Act is applicable to a case where only the site, building and power equipment of a factory are acquired except for machinery and equipment of a factory

Summary of Judgment

According to Article 112(3) of the Local Tax Act, Article 84-2(2) of the Enforcement Decree of the same Act, Article 47 subparag. 7 of the same Act, and Article 138(1)4 of the Enforcement Decree of the same Act, and Article 102(3) of the same Act, "acquisition by succession of a factory excluded from the new construction or extension of a factory subject to heavy taxation of acquisition tax and registration tax" means that all of the land, buildings, production facilities, etc. of an existing factory are comprehensively taken over, and production facilities are included in the concept of machinery necessary for production according to the type of business, in addition to the power equipment which is the basic facilities, and taking over only a factory site and a building and power equipment, except for machinery and equipment

[Reference Provisions]

Articles 112(3) and 138(1)4 of the Local Tax Act, Article 84-2(2) and 102(3) of the Enforcement Decree of the same Act, Article 47 subparag. 7 and 1 of the Enforcement Rule of the same Act

Plaintiff-Appellant

[Judgment of the court below]

Defendant-Appellee

Attorney Kim Jong-soo, Counsel for the defendant-appellant of Busan Special Metropolitan City

Judgment of the lower court

Daegu High Court Decision 87Gu114 delivered on May 4, 198

Notes

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

Due to this reason

The Plaintiff’s ground of appeal is examined (the supplementary appellate brief of the Plaintiff was submitted after the expiration of the submission period, and it is also examined to the extent of supplement in case of Plaintiff’s ground of appeal).

The court below acknowledged the fact that the non-party used the factory site and building of this case as a textile manufacturing factory on January 25, 1981 and then closed the business on January 25, 1981, the plaintiff, who was attached to voluntary auction, acquired the above factory site and building except machinery facilities on March 8, 1982. In light of the records, there is no violation of the rules of evidence or incomplete hearing as to the above approval of the court below, and there is no violation of the rules of evidence or incomplete hearing.

According to Article 112(3) of the Local Tax Act, Article 84-2(2) of the Enforcement Decree of the same Act, Article 47 subparag. 7 of the Enforcement Decree of the same Act, and Article 138(1)4 of the same Act, and Article 102(3) of the Enforcement Decree of the same Act, the acquisition by succession of a factory excluded from the new construction or extension of a factory subject to heavy taxation of acquisition tax and registration tax means that all of land, building, manufacturing facilities (including machinery, power equipment, etc.) of an existing factory are taken over comprehensively. Thus, it is clear that the Plaintiff’s acquisition of only factory site and building of this case except for machinery and equipment does not constitute acquisition

This paper argues that the plaintiff's acquisition by transfer of power equipment, such as high-tension power equipment, power distribution board, etc. installed inside a factory building after being awarded a successful bid for the factory site and building of this case, constitutes acquisition by succession of the factory. However, even if the plaintiff acquired by transfer the land and power equipment other than the factory, the "factory" under the Local Tax Act refers to the place and land attached thereto with production equipment so that it can be used for manufacturing, processing, repairing, printing, etc. of goods for business purposes (see Article 47 subparagraph 1 of the Enforcement Rule of the Local Tax Act). Since the above production equipment includes machinery necessary for production according to the type of business of the factory in addition to the power equipment which is the basic facility, it cannot be viewed that all production equipment was acquired by transfer of power equipment.

In addition, it is clear that the Plaintiff acquired a fiber manufacturing factory, which is an existing factory, and then moved the Plaintiff’s ○ valve manufacturing company and newly installed a valve manufacturing facility, falls under the change of the type of business of a factory under Article 84-2(2)3 of the Enforcement Decree of the Local Tax Act, and thus, it is not subject to heavy taxation in this respect. However, in light of the provisions of Article 47 subparag. 8 of the Enforcement Rule of the same Act, in a case where the type of business is changed through the transfer of existing factory, it is obvious that the change of the type of business after the transfer of existing factory should not be regarded as the new construction or extension of a factory only when the acquisition by transfer of existing factory is acquired by succession. Thus, as seen earlier, as long as the Plaintiff’s factory acquisition cannot be seen as the acquisition by succession

After all, there is no reason for the judgment of the court below that there is a violation of the rules of evidence, incomplete deliberation, or misapprehension of the legal principles, and each case of the lawsuit is different from this case, or is related to the case before the amendment of Article 47 of the Enforcement Rule of the Local Tax Act, and thus, it cannot

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)

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