사업인정고시일이 2006.12.31. 이후인 경우 비사업용토지 제외 여부[국승]
Seoul Administrative Court 2008Gudan16516 (209.09)
Cho High Court Decision 2008Do1098 (Law No. 26, 2008)
Whether the public notice of project authorization is given after December 31, 2006, is excluded from non-business land.
The land which is purchased by consultation or expropriated pursuant to the Land Compensation Act, etc. and of which public notice of project approval is published on December 31, 2006 shall not be regarded as the land for non-business use; however, even if it is purchased by consultation on December 31, 2006 under the Land Compensation Act, it shall not be excluded if the public notice of project approval is made after January 1, 2007;
The contents of the decision shall be the same as attached.
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the plaintiff.
Purport of claim and appeal
The judgment of the first instance shall be revoked. The defendant's refusal to rectify the transfer income tax for the year 2006 returned and paid to the plaintiff on May 31, 2007 as the actual market price on January 16, 2008 shall be revoked if the transfer income tax is corrected to the standard market price.
1. The reasons presented by the court in this decision are the same as the reasons for the judgment of the court of first instance except for the following additional parts, and therefore, they are cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
On November 20, 2006, the Plaintiff transferred each of the instant lands to the superintendent of education on November 20, 30 of the same month upon receipt of a request from the superintendent of education for consultation on land compensation. The public announcement of the instant public announcement was made on September 10, 2007. If there was no public announcement on the transfer of each of the instant lands thereafter, the transfer of each of the instant lands should be deemed as the non-public announcement of the public announcement of the public announcement, and if there was no public announcement of the public announcement, the transfer of each of the instant lands shall be deemed as the non-public announcement of the public announcement of the public announcement of the public announcement of the compensation plan under Article 15 of the Land Compensation Act in light of the principle of equity, since each of the instant lands is deemed as the public announcement date of the public announcement of the public announcement of the land compensation plan, and it does not constitute non-business land under Article 168-14 (3) 3 of the former Enforcement Decree, and thus, the disposal of the instant lands should be unlawful.
In light of the language and text of Article 168-14(3)3 of the former Enforcement Decree of the Land Compensation Act, the acquisition by consultation under the Land Compensation Act, etc. can also be made before the public announcement of the public announcement is made. Thus, even if there was no public announcement of the public announcement at the time of transfer of each of the instant lands, the transfer of each of the instant lands cannot be deemed to be the case where there was no public announcement of the public announcement. Thus, the transfer of each of the instant lands cannot be deemed to be the case where there was no public announcement of the public announcement of the public announcement. In light of the principle of no taxation without the law without the law, the interpretation of tax laws is interpreted as the legal text, and it is not allowed to expand or analogically interpret the said land without any reasonable reason (see, e.g., Supreme Court Decision 2008Du11372, Aug. 20, 209). Thus, in light of the language and text of Article 168-14(3)3 of the former Enforcement Decree, the Land Compensation Act, it cannot be seen as the public announcement of the public announcement.
In addition, the plaintiff argues to the effect that the transfer time of each land of this case shall be the standard time for calculating gains from transfer, as well as for whether it falls under the taxation requirements or tax exemption requirements, and furthermore, it shall be the standard time for applying laws and regulations. Since there was no project approval from the project operator on December 1, 2006, which is the transfer time of each land of this case, since there was no project approval from the project operator on December 1, 2006, the transfer time of each land of this case, even if there was a public announcement thereafter, it shall be deemed that there was no public announcement on the transfer time based on the above transfer time in applying Article 168-14 (3) 3 of the former Enforcement Decree. However, according to the above Enforcement Decree, the issue of whether a land purchased by a project operator is a land for business purpose is determined by whether a public announcement was made before December 31, 206 based on the public announcement on the public announcement of project approval. Thus, the application or interpretation of the above provision of this case cannot change from the point of view.
2. If so, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just, and the plaintiff's appeal shall be dismissed as it is without merit. It is so decided as per Disposition.