[토지초과이득세부과처분취소][공1997.9.15.(42),2735]
[1] Whether Article 8(1)7 of the Land Excess Profit Tax Act is retroactively applied (affirmative)
[2] Whether it is determined whether a forest owned by an individual is idle land according to its land category purpose (negative)
[1] Article 8 (1) 7 of the former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994) provides that "a piece of idle land, etc. subject to land excess profit tax, other than that falling under any of the following items, is excluded from taxation subject to taxation pursuant to subparagraph (a) through (h) of the same Article. This provision provides that "after that provision is later amended by the Constitutional Court of July 29, 1994 in accordance with the Constitutional Court's decision of inconsistency with the Constitution as of December 22, 1994 as of December 22, 1994, "a temple forest and a forest adjacent to a religious facility owned by the religious organization operating a religious business under the provisions of Article 9 (4) of the same Act, which is retroactively applied to the previous forest subject to conservation under the Forestry Act which was used directly in the religious business under the provisions of the same Article, and thus, the provision is retroactively applied to the (a) amendment of the same item."
[2] According to Article 8 (1) 7 of the Land Excess Profit Tax Act, forest land owned by an individual falls under idle land, etc. which is subject to the land excess profit tax unless it falls under the grounds as provided in items (a) through (h). In light of the legislative purpose and purport of the Act, regulatory object and method, etc., if forest land owned by an individual falls under the grounds as provided in Article 8 (1) 7 (a) through (h) of the same Act, it shall be deemed that it is used efficiently and excluded from the taxable object. However, if it does not fall under the above grounds, it shall be deemed that it is subject to the taxable object. Thus, the issue of whether a private forest falls under the idle land, etc. subject to the taxation is determined as meeting the requirements as provided in the above legal provisions, and there is no room to separately determine whether it is being used according to the land category's original purpose.
[1] Article 8 (1) 7 of the Land Excess Profits Tax Act / [2] Article 2 subparagraph 5 of the Land Excess Profits Tax Act and Article 8 (1) 7 of the Land Excess Profits Tax Act
[1] Supreme Court Decision 92Hun-Ba49, 52 delivered on July 29, 1994 (Hun-Ba7, 505), Supreme Court Decision 93Nu16772 delivered on January 26, 1996, Supreme Court Decision 93Nu1791 delivered on January 26, 1996 (Gong1996Sang, 814)// [2] Supreme Court Decision 93Nu5819 delivered on December 24, 1993 (Gong194Sang, 565) Supreme Court Decision 93Nu1713 delivered on July 30, 196 (Gong196Ha, 2718), Supreme Court Decision 96Nu541419 delivered on September 6, 1996 (Gong196Nu519689 delivered on September 30, 196)
Plaintiff (Attorney Park Young-soo, Counsel for the plaintiff-appellant)
the director of the tax office of Western
Seoul High Court Decision 94Gu28163 delivered on March 29, 1996
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. Article 8 (1) 7 of the former Land Excess Profit Tax Act (No. 4177 of December 30, 1989, amended June 11, 1993, Act No. 4561 of June 11, 1993, Act No. 4563 of June 11, 1993, the former Act hereinafter referred to as "the former Act") provides for cases where "other than those falling under any of the following items" is excluded from taxable objects under subparagraph (a) through (h) of the former Land Excess Profit Tax Act (excluding those falling under any of the following items) as one of the taxable items of land excess profit tax (hereinafter referred to as "land"), and since this provision is later applicable to "the forest under the provisions of Article 8 (1) 1 through (h) of the former Forestry Act (see, e.g., Supreme Court Decision 97Da1697, Dec. 29, 199>
Therefore, with respect to the forest land of this case, it should be determined as to whether it constitutes idle land, etc. subject to taxation under Article 8 (1) 7 of the amended Act, and the application of the provisions of the former Act differently by the court below to the application of the provisions of the former Act to the idle land, etc. subject to taxation of soil, etc. However, it is obvious in the record that the amended provisions of the Act does not have any influence on whether the forest land of this case constitutes idle land, etc., and therefore, such errors by the court below do not affect the conclusion of the judgment.
2. According to Article 2 subparagraph 5 of the Land Tax Act before and after the amendment, "unused land, etc." is defined as the land subject to soil tax which falls under the provisions of Article 8 or 9, and according to Article 8 (1) subparagraph 7 of the amended Act, a private forest shall be deemed as falling under idle land, etc. subject to soil tax unless it falls under the grounds provided for in items (a) through (h) as mentioned above. In light of the legislative purpose and purport of the Act, regulated objects and methods, etc., the purpose of this provision is to exclude a private forest from the category of taxation if it falls under the grounds provided for in Article 8 (1) 7 (a) through (h) of the amended Act, it shall be deemed as being used efficiently. However, if it does not fall under the above grounds, whether it falls under a private forest subject to soil tax, etc. shall be determined as satisfying the requirements provided for in the above Act, and it shall not be determined as if it is used separately for the original purpose of 196Nu31969, May 196, 1996.
Therefore, the decision of the court below that the forest of this case is subject to soil tax regardless of whether it is originally used for its original purpose, unless it falls under any of the grounds that it is subject to soil tax under Article 8 (1) 7 (a) through (h) of the amended Act. The decision of the court below is just, and there is no error in the misapprehension of legal principles as to the scope of the forest subject to soil tax, as otherwise alleged in the ground of appeal. The ground of appeal cannot be accepted.
3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Cho Chang-hun (Presiding Justice)