[토지초과이득세부과처분취소][공1996.7.1.(13),1905]
Where the land owned by a homeless household is a lot of land, the land excluded from idle land;
According to Article 8 (1) 14 (a) of the Land Excess Profit Tax Act, Article 21 (1) 1 of the Enforcement Decree of the same Act, and Article 15 (3) of the Enforcement Decree of the same Act, one lot of land owned by the members of one household who does not own a house, which is not in an area where new construction of a house is prohibited or restricted pursuant to the provisions of Acts and subordinate statutes, and the land category of which is a site or land of which is less than 660 square meters which can substantially construct a house (including land for which no construction permission is granted because it falls short of the minimum size of a site) shall be excluded from idle land. In this case, if there are two or more lots of land, a member of the household may choose a lot excluded from the idle land: Provided, That where the same person owns two or more lots of land among the members of a household who do not own a house, a lot of land excluded from the idle land shall be decided preferentially to the extent of the lot of land which is larger.
Article 8(1)14(a) of the Land Excess Profit Tax Act; Article 21(1)1 of the Enforcement Decree of the Land Excess Profit Tax Act; Article 15(3) of the Enforcement Rule of the Land Excess Profit Tax Act; Article 15(3) of the Enforcement Rule of the Land Excess
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)
[Judgment of the court below]
Head of Central Tax Office
Seoul High Court Decision 92Gu35327 delivered on June 22, 1993
The appeal is dismissed. The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
Article 8 (1) 14 (a) of the Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994), Article 21 (1) 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994), and Article 15 (3) of the Enforcement Rule of the same Act (amended by Ordinance of the Prime Minister No. 506 of May 19, 195) provides that each of the above provisions shall be applied retroactively to this case, since it is pointed out unconstitutional in the decision of a merger of cases 92Hun-Ba49, 52 cases, and this case shall be excluded from this case, where one of the members of one household who does not own a house owns it, and the same person does not own it in a new site or area, and if the same person does not own it in fact and does not own it, it shall be excluded from the land which is owned by the same person within 60 square meters.
However, according to the court below's determination, the plaintiff is a member of one household who does not own a house, and the land category of this case is limited to 249 square meters, and other land owned by the plaintiff does not constitute idle land, etc. in the area subject to taxation to be determined as of the end of the scheduled taxable period of this case. Thus, the land of this case is a parcel excluded from idle land. According to the revised provisions, it is clear that the whole land of this case is land excluded from idle land, etc. which is subject to the land excess profit tax.
Although the court below's reasoning is somewhat wrong, it is proper that the land of this case is excluded from the land stipulated in Article 8 (1) 14 (a) of the above Act and Article 21 (1) 1 of the Enforcement Decree of the same Act, and it does not constitute idle land, etc., and there is no error of law such as misunderstanding of legal principles or incomplete hearing as pointed out by the theory of lawsuit. There is no reason to discuss.
Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jong-sik (Presiding Justice)