[토지초과이득세부과처분취소][공1997.3.1.(29),672]
Whether or not land which is already prohibited from being used as a provision of law before its acquisition is excluded from idle land (negative)
Even though the prohibition of building permission under the Building Act as a blind land falls under the prohibition of use due to the statutory provisions under Article 8(3) of the Land Excess Gains Tax Act, the above provision merely provides that the land, the use of which is prohibited by the statutory provisions after the acquisition of the land, shall not be considered as idle land, etc. for a certain period of time. Thus, unless the reason arises after the acquisition of the land, the existence of such reason alone cannot be excluded from idle land.
Article 8(3) of the Land Excess Profits Tax Act
Supreme Court Decision 95Nu3770 delivered on October 13, 1995 (Gong1995Ha, 3825) Supreme Court Decision 95Nu5646 delivered on May 14, 1996 (Gong199Ha, 1928)
Kim Jong-ju et al. (Attorneys Lee Young-young, Counsel for the plaintiff-appellant)
The head of Yangcheon Tax Office
Seoul High Court Decision 94Gu23618 delivered on March 22, 1995
The judgment below is reversed and the case is remanded to Seoul High Court.
We examine the grounds of appeal.
According to the reasoning of the judgment below, the court below held that the plaintiffs acquired part of their shares of 330 m20-5 m209 m2 (hereinafter "the land in this case before division") between May 28, 1984 and August 24, 198 (the part which was deemed as August 18, 198 among the judgment of the court below) between May 28, 1984 and August 24, 198, and that the remaining part of the land in this case was 334 m25 as of September 21, 1985, and that the remaining part of the land in this case was 94 m20-7 m20-7 m209 m27 m2, 1990-7 m2, 197 m2, 197 m2, 197 m2, 309-7, 197 m2, 196.
However, even though the prohibition of building permission under the Building Act as a blind land falls under the prohibition of use due to the statutory provisions under Article 8(3) of the Land Excess Profit Tax Act, the above provision merely provides that the land, the use of which is prohibited due to the statutory provisions after the acquisition of the land, shall not be considered as idle land, etc., and as long as the ground does not arise after the acquisition of the land, the existence of such reason shall not be excluded from the idle land (see Supreme Court Decision 95Nu370 delivered on October 13, 1995). Thus, the court below should have determined whether the specific point of time of the land in this case becomes the blind land after the acquisition of the plaintiffs' share after determining whether it is excluded from the idle land (According to the records, the North part of the land in this case before the division shall not be seen as being incorporated into the vacant road due to the extension of the above expressway while not abutting on the road, and it shall not be seen as having been incorporated into the vacant road only after it was incorporated into the site due to the extension of the above expressway).
Nevertheless, the lower court determined that the instant land was excluded from idle land pursuant to Article 8(3) of the Land Excess Profit Tax Act without specifically examining whether it constitutes land prohibited from being used due to the statutory provisions after the acquisition thereof. In so doing, the lower court erred by misapprehending the legal doctrine on the above provision, thereby failing to exhaust all necessary deliberations.
There is reason to point this out.
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Im-soo (Presiding Justice)