1996-0360 ( August 28, 1996)

Paperland

Dismissal

Since the fact that a report on commencement of a building is confirmed in the report on commencement of a building, it is reasonable to impose and notify the aggregate land tax by deeming that the land used directly for the proper purpose business as of the tax base date.

Article 234-8 of the Local Tax Act / [Taxable Person] Article 234-9 of the Local Tax Act / [Tax Base] Article 234-15 of the Local Tax Act

The request for review of the requesting corporation shall be dismissed.

1. Summary of the original disposition;

처분청은 청구법인이 소유하고 있는 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지외 4필지 토지 16,005㎡(이하 “이건 토지”라 한다)를 1995년도 종합토지세 과세기준일(6.1.) 현재 고유목적사업에 직접 사용하지 아니하므로 지방세법 제234조의12 단서규정에 의한 과세대상토지로 보아 이건 토지의 과세표준액(1,350,046,600원)에 같은법 제234조의16제1항의 세율을 적용하여 산출한 1995년도 종합토지세 18,652,180원, 도시계획세 2,474,260원, 교육세 3,730,430원, 농어촌특별세 1,930,030원, 합계 26,786,900원을 1995.10.10. 부과고지하였다.

2. Purpose and reason of the request.

청구법인은 교육을 목적사업으로 하는 비영리 학교법인으로서 ㅇㅇ전자공업고등학교를 설립할 목적으로 1995.3.8. 및 같은해 3,23. 이건 토지를 취득하고 1995.3.9. ㅇㅇ시 교육위원회로부터 학교시설사업시행계획 승인을 득하여 같은해 4.8. 토목공사 착공신고서를 제출하고, 같은해 5.25. 건축허가를 받아 같은해 5.29. 기공식을 가진 후 부지조성공사와 병행하여 건축물 건축공사를 시행·완료하고, 1996.3. 개교하여 현재 12학급을 운영하고 있는 바, 지방세법 제234조의12제2호에서 비영리 학교법인이 그 사업에 직접 사용할 건축물을 건축중인 경우의 토지는 종합토지세를 비과세하도록 규정하고 있고, 지방세는 실질과세원칙에 따라야 하므로 과세대상토지인지의 여부판단은 요식적 행위인 건축물 착공신고서 제출 여부에 의해 판단할 것이 아니라, 과세기준일 현재 실제 건축공사에 착공하였는지 여부에 의해 판단하여야 할 것인 바, 청구법인의 경우 1995년도 종합토지세 과세기준일 현재 부지조성공사와 옹벽공사를 진행하고 있었으므로 건축물을 건축중인 것으로 보아야 할 뿐 아니라, 1995.5.30. ㅇㅇ일보에 기공식 사실이 보도되었기 때문에 6.1. 현재 학교건축물 신축공사가 진행중인 사실을 객관적으로 알 수 있으므로 이건 토지는 과세기준일 현재 지방세법 제234조의12제2호에서 규정하는 건축물을 건축중인 경우의 토지로 보아야 함에도 건축물 착공신고서를 1995.8.19. 제출하였고, 공사감리일지에서도 과세기준일 이후 터파기 공사를 하였다는 사실이 입증된다는 이유로 1995년도 종합토지세 과세기준일 현재 고유목적사업에 직접 사용하고 있지 않는 것으로 보아 1995년도 종합토지세 등을 부과고지한 처분은 부당하다고 주장하면서 그 처분의 취소를 구하였다.

3. Judgment of the Republic of Korea

The request for review of this case is a dispute as to whether it falls under the land where a building is under construction as of the assessment basis date of the aggregate land tax (6.1.).

A. First, examining the provisions of relevant Acts and subordinate statutes

Article 234-9 (1) of the Local Tax Act provides that "A person who actually owns land." as of the tax base date for aggregate land tax shall be liable to pay the aggregate land tax, and Article 234-12 of the same Act provides that "No aggregate land tax shall be imposed on the land stipulated in the following subparagraphs (..............)" and subparagraph 2 of the same Article provides that "a non-profit entrepreneur prescribed by the Presidential Decree, who directly uses for the relevant business." In this case, where a building to be directly used for the relevant business is under construction. The land annexed to the building to be constructed shall be deemed to have been directly used for the relevant business." Article 194-6 (2) of the Enforcement Decree of the same Act provides that "a non-profit entrepreneur prescribed by the Presidential Decree" means a non-profit entrepreneur as provided in Article 79 of the same Act, and Article 79-12 (1) of the Enforcement Decree of the same Act provides that "a person who runs a non-profit business as prescribed by the Presidential Decree," shall be defined as follows:

B. Next, examining the case of the requesting corporation

The fact that the applicant corporation imposed and collected the aggregate land tax, etc. is a non-profit school corporation that conducts education as the target business and does not directly use this land as of the tax base date of the aggregate land tax of 1995 (6.1.).

However, as of the assessment basis date of the aggregate land tax, the applicant corporation is proceeding with a site development project and a retaining wall construction project, and thus, it should be deemed that the building is being constructed. In addition, since it was reported on May 30, 195, it was objectively known that the new building construction project is in progress as of June 19, 195, the applicant filed a report on construction commencement of the building as of August 19, 195, and on the ground that it is proved that the construction work was conducted after the tax base date, the construction supervision date also submitted a report on construction commencement of the building, and it is argued that the disposition imposing and assessing the aggregate land tax in the year 1995

In a case where a non-profit entrepreneur, who is engaged in academic or other public activities as prescribed in Article 234-12 and 2 of the Local Tax Act, constructs a building to be directly used for such activities, the land annexed to the planned building shall be deemed to be directly used for such activities and shall be exempted from the aggregate land tax. In the case of a requesting corporation, a report on the commencement of site construction works on April 8, 1995 shall be submitted after the acquisition of the building on March 8, 1995 and March 23 of the same year, and even if the construction of a site and a retaining wall construction were conducted on May 25 of the same year after obtaining a construction permit on May 25 of the same year, the aggregate land tax is a property tax of the nature of profit-free nature that recognizes the capacity to pay taxes and is divided into the current status or current status of use of the land as of the tax base date, and thus, the construction of a building under Article 234-12 subparagraph 2 of the Local Tax Act shall not be deemed to include the construction of a building site under construction work.

In addition, the claimant corporation's assertion that it is objectively proved that the construction work is in progress as of June 1, 1995, considering that it was reported on May 30, 1995, and that it is objectively proved that the construction work of the building is in progress as of May 30, 1995. However, the report on the fact that the applicant corporation claimed on August 19, 1995 is confirmed in the report on the commencement of the building, and as long as the fact that the report on the commencement of the construction of the building was confirmed in the report on the commencement of the construction of the building, and the actual commencement of the construction is also confirmed in the construction supervision date submitted by the disposition agency, it is legitimate in the disposition agency's determination that the land of this case does not constitute the land directly used for the proper purpose business as of the aggregate land tax assessment basis date of the year 195.

Therefore, since the claimant corporation's assertion is recognized as groundless, it is decided as ordered by Article 58 (5) of the Local Tax Act.

August 28, 1996

Ministry of Home Affairs;