[법인세부과처분취소][공1998.3.15.(54),802]
[1] The case holding that where there was a prohibition or restriction of land use due to administrative action prior to the acquisition of real estate, the acquisition of real estate in question does not constitute "real estate, the use of which is prohibited or restricted by the provisions of the law after the acquisition of the real estate
[2] Whether "justifiable cause" is recognized as a general exception to non-business real estate (negative)
[1] The case holding that the existence of planning roads under the urban planning of the above land is a prohibition or restriction under the law, on the ground that it is difficult to change the use of land due to administrative action before the acquisition of the above land, and it does not constitute an exception to non-business real estate on the land, the use of which is prohibited or limited by the provisions of the law after the acquisition of the above land, on the ground that it is difficult to change the use of the land due to the approval of the business plan due to the reason that the change of the urban planning is difficult due to the division rate, etc., and therefore, the above land does not constitute an exception to non-business real estate because the use of the land is prohibited or limited by the provisions of the law after the acquisition, etc. of the above land.
[2] Article 18 (3) of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister No. 675 of Dec. 31, 1997) lists real estate for non-business use of a juristic person individually, and Article 18 (4) lists the grounds for exception. Thus, if the real estate falls under any subparagraph of paragraph (3), unless there are grounds for exception under paragraph (4), the real estate shall be deemed non-business real estate, and so-called "justifiable grounds" shall not be deemed general grounds for exception.
[1] Article 18-3(1) of the former Corporate Tax Act (amended by Act No. 4282 of Dec. 31, 1990), Article 43-2(1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 13195 of Dec. 31, 1990), Article 18(3) and (4)1 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1844 of Feb. 28, 1991) / [2] Article 18-3(1) of the former Corporate Tax Act (amended by Act No. 4282 of Dec. 31, 1990), Article 43-2(1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 13195 of Dec. 31, 190), Article 48(3) and (4)1 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister of the Prime Minister of Dec. 315.
[1] Supreme Court Decision 94Nu4172 delivered on February 24, 1995 (Gong1995Sang, 1499) / [2] Supreme Court Decision 93Nu13469 delivered on November 26, 1993 (Gong194Sang, 222)
Musan Construction Co., Ltd. (Attorney Lee Jong-soo, Counsel for defendant-appellee)
Jindo Director of the Tax Office
Seoul High Court Decision 95Gu31753 delivered on November 26, 1996
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. According to the reasoning of the judgment below, the fact-finding and judgment of the court below are as follows.
A. Facts found by the court below
Since June 13, 1986 and February 12, 1988, and March 2, 198 of the same year, the Plaintiff, a housing-sale business entity, purchased a lot of real estate at Si 1, 1950, but did not construct an apartment building on September 7, 1990 because it was impossible to obtain approval of the housing construction project from the authorities, and part of the apartment building was incorporated into the road, and the rest of the land was designated as the housing site development project district on April 24, 1991, and was transferred through consultation on August 24, 198 and October 21, 198, for the purpose of supplying the housing to Si 1, 198, and for the purpose of supplying the housing to Si 1,50,500,000,000,000,000 from the 197,000,000,000).
B. Based on the aforementioned factual basis, the lower court determined that the land in this case was already prohibited or restricted from using land due to administrative action before its acquisition, and that it cannot be deemed as an exception to non-business real estate as the land, the use of which was prohibited or restricted by the provisions of statutes after its acquisition, and thus, cannot be deemed as falling under the exception to non-business real estate.
2. In light of the records and relevant statutes, the above determination by the court below is just, and even if there are cases where the business plan was approved for the area of this unit, the regulation of approval for the construction project of multi-family housing with respect to the land of this case cannot be deemed as the prohibition or restriction under the law. Whether it is a statutory prohibition or restriction should be examined specifically and individually (see Supreme Court Decision 94Nu4172 delivered on February 24, 1995), and in light of the division road rate, etc., it is reasonable to determine that the existence of planning road under the urban planning of this case constitutes the prohibition or restriction under the law, on the ground that it is difficult to change the urban planning with respect to the land of this case due to the reason that it is difficult to change the urban planning by the approval of the business plan in light of the division road rate, etc.
3. Article 18(3) of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister No. 675 of Dec. 31, 1997) lists real estate for non-business use of a juristic person individually, and Article 18(4) lists the grounds for exception. Thus, if the real estate falls under any subparagraph of paragraph (3), unless there are grounds for exception under paragraph (4), the real estate shall be deemed non-business real estate, and so-called "justifiable cause" shall not be deemed a general ground for exception (see Supreme Court Decision 93Nu13469, Nov. 26, 1993).
The judgment of the court below to the same purport is just, and there is no error of law as otherwise alleged in the ground of appeal. The Supreme Court decision cited in the ground of appeal is not appropriate to be invoked as it differs from this case.
4. 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)