[개발부담금부과처분취소][미간행]
In cases where a project implementer concludes a sales contract for the land prior to the commencement date of imposition of development charges and pays intermediate payments and remainder after the commencement date of imposition, whether it constitutes “purchase prior to the commencement date of imposition” under Article 9(5)1 of the former Enforcement Decree of the Restitution of Development Gains Act (affirmative)
Article 10(3)5 of the Restitution of Development Gains Act, Article 9(5)1 of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 19752, Dec. 15, 2006)
[Plaintiff-Appellant] Plaintiff 2007Du22382 decided Mar. 13, 2008 (Gong2008Sang, 535)
Hed Co., Ltd. (Law Firm North Eastdong Law Office, Attorney Park Jong-il, Counsel for the plaintiff-appellant)
The head of Mapo-gu Seoul Metropolitan Government
Seoul High Court Decision 2005Nu458 delivered on December 9, 2005
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
Article 10(3) of the Restitution of Development Gains Act provides that the land price as of the starting point for the imposition of development charges shall be the aggregate value of the increases in normal land prices from the base date of the officially assessed individual land price of the year in which the starting point for imposition falls to the starting point to the starting point for the imposition, and where the actual purchase price is objectively recognized as the normal transaction price, as prescribed by the Presidential Decree, the value calculated by adding or adding the increases in normal land prices from the date of purchase or acquisition to the starting point for the imposition may be the starting point for the land price. Article 9(5)1 of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 19752 of Dec. 15, 2006) provides that “Where the purchase price before the starting point for the imposition of development charges becomes the tax base for acquisition tax or registration tax.” Article 9(5)1 of the same Act provides that “Where the purchase price can be calculated as of the starting point for the imposition of development charges, and the purpose and purpose of the above proviso and institutional purpose of the starting point for imposition of the development charges and the payment.”
In the same purport, the court below concluded a sales contract to purchase the land of this case before and after the commencement date of the imposition, and paid the intermediate payment and the balance as stipulated in the contract, and in this case where the purchase price becomes the tax base for acquisition tax, it constitutes “where the purchase price was purchased before the commencement date of imposition and became the tax base for acquisition tax or registration tax” under Article 9(5)(1) of the Enforcement Decree of the above Act, and thus, it is just to cancel the disposition of this case on the ground that the Defendant calculated the land price as of the starting date based on the officially assessed individual land price, not the actual purchase price, pursuant to the main sentence of Article 10(3) of the above Act, and imposed the development charge on the Plaintiff, on the ground that
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Ji-hyung (Presiding Justice)