[2] Where part of the standard land is excluded from the taxation subject of land excess profit tax due to statutory restrictions, whether the application of the officially announced land price of the standard land can be asserted in a lawsuit seeking cancellation of land excess profit tax imposed on the remaining land (negative)

[2] In a case where a part of the standard land is publicly announced as a planned area for housing site development and the remaining land falls under idle land, as long as the remaining land is part of the standard land without dividing it from the land which is the standard land until the end of the regular taxable period for land excess profit tax, the remaining land shall be deemed part of the standard land. Thus, in a lawsuit seeking cancellation of the disposition imposing the land excess profit tax on the remaining land based on the officially announced land price of the standard land without following the procedure for objection to the officially announced land price of the former Public Notice of Values and Appraisal of Lands, etc. (amended by Act No. 5108 of Dec. 29, 1995), it cannot be argued that the application of the officially announced land price of the standard land is unlawful, and that the other assessed land excess profit tax shall be applied. In addition, on the basis of the principle of substantial taxation, the assessment standard for land excess profit tax

According to the reasoning of the lower judgment, the lower court determined that: (a) the Plaintiff, on February 18, 1985, acquired a forest land of 13,091 square meters (hereinafter “instant land”); (b) on October 27, 1989, the lower court publicly notified the lower part of the instant land as a planned housing site development area (hereinafter “land”) of 4,231 square meters at the end; and (c) on that basis, the Minister of Construction and Transportation selected the instant land as a reference land for 190 and publicly announced the land price of 4,200 won for 193 and 8,000 won for 190 square meters for 190 square meters; and (d) calculated the remaining land price of 13,500 square meters for 190 square meters for 4,000 square meters for 19,000 won for 19,000 won for 19,000 won for 3,000 won for 1,00 won for 3,000 won for each of the instant land.

However, in order to object to the officially announced land price of the land selected as the reference land, it is not possible to dispute the illegality of the officially announced land price in a lawsuit seeking revocation of the determination of the officially announced land price without following the procedure of objection under Article 8 (1) of the Public Notice of Values and Appraisal of Lands, etc. (amended by Act No. 5108 of Dec. 29, 195; hereinafter the "Public Notice of Values and Appraisal of Lands, etc. Act"), and as long as the remaining land of this case is part of the reference land without dividing it from the land as the reference land until the end of the above taxable period, the remaining land of this case is part of the reference land of this case, and it is not unlawful to file a lawsuit seeking revocation of the determination of the officially announced land price of this case without undergoing such procedure (see, e.g., Supreme Court Decisions 93Nu16468, Nov. 10, 195; 93Nu16451, Nov. 24, 1995).

In addition, Article 2 subparag. 1 of the Land Price Publication Act and Article 3(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14447 of Dec. 23, 1994), Article 3(1) of the same Act provides that the Minister of Construction and Transportation shall select a parcel of land which can represent a group of land as a reference land, and the officially announced value refers to the price per unit area of the reference land publicly announced by the Minister of Construction and Transportation, and Article 11(1) of the Land Excess Profit Tax Act provides that the tax base of the land excess profit tax shall be calculated by lot. In full view of the provisions of the relevant Acts and subordinate statutes, the officially announced value of the land selected as the reference land shall be publicly announced at the unit area of the relevant parcel. In this case, where a part of the reference land for one parcel of land is restricted by the law, as so, by applying the internal appraised value of the reference land in the process of determining the officially announced land price, instead of the officially announced value of the reference land.

Nevertheless, the lower court determined that the Defendant’s disposition of this case, which calculated the land excess profit tax base on the remaining land based on the officially announced land price of the instant land, was unlawful, is erroneous by misapprehending the legal doctrine as to the officially announced land price of the standard land, thereby adversely affecting the conclusion of the judgment. The grounds for appeal assigning

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 Lee Yong-hun (Presiding Justice)