Whether the use of any idle land is prohibited or restricted by law;

In developing land, it is designated as an urban design zone subject to deliberation by the Seoul Metropolitan Government Mediation Committee for Urban Design, but the use of the land is not prohibited or restricted by law.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.

1. Reasons for taxation and facts related to requirements therefor; and

According to the facts without dispute and evidence Nos. 3 through 6, and evidence No. 1, the following facts are recognized:

가. 원고선정당사자 및 선정자(이하 원고등이라 한다)가 공동으로 1974. 3. 8 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 소재 대지 229.5제곱미터(이하 이사건 토지 라 한다)의 소유권을 취득하여 보유하고 있는 바, 피고는 이사건 토지에 대하여 1991. 11. 1. 예정결정기간을 1990. 1. 1.부터 1990. 12. 31.로 한 토지초과이득세 (이하 초과이득세라 한다)를 결정함에 있어 과세표준이 되는 예정결정 과세개시일의 개별공시지가는 1990. 1. 1. 지가로 하고 과세종료일의 개별공시지가는 다음해인 1991. 1. 1. 지가를 적용하여 토지초과이득을 각 금58,991,357원으로 산정하여 초과이득세 각금29,495,670원을 부과처분하였다.

나. 이사건 토지는 ㅇㅇ시가 1987. 2. 4. 구건축법(1991. 5. 31. 개정전) 제8조의2 규정에 따른 서울특별시 공고 제53호에 의하여 테헤란로 지구 (강남구 역삼동, 서초동, 삼정동, 대치동 1,090,000제곱미터)도시설계구역에 포함시킨 결과, 이사건 토지는 인접토지와 공동개발로만 건축이 가능하며 단독개발의 경우는 서울특별시 도시설계 조정위원회의 심의를 거치도록 하는 내용으로 건축 제한조치를 받게되었다.

다. 원고등은 위와같이 이 사건 토지가 도시설계구역으로 지정된 이후에도 이사건 토지에 인접한 ㅇㅇ번지 외 1필지와 공동개발을 하거나 위 조정위원회의 심의를 거친 단독개발은 하지 아니하고 나대지로 보유하고 있다.

D. Meanwhile, the land in this case was designated and publicly notified as the land on which the land price under the Land Excess Profit Tax Act, effective January 1, 1990 (hereinafter “Act”), which is likely to rapidly increase or increase, can be assessed on an annual basis, and on which the land excess profit tax can be assessed on an annual basis.

2. The legality of a disposition of imposition.

A. The parties' assertion

Since the plaintiffs are regulated to jointly develop the land of this case as an urban design area, it shall be excluded from the idle land subject to excess acquisition tax as land, the use of which is restricted by the provisions of the laws and regulations for the acquisition of land, and since the officially assessed land price of December 31, 1990, which is the starting date of the scheduled taxation period for excess acquisition tax (1 January 1, 1990) and the officially assessed land price of December 31, 1990, which is the end date of the scheduled taxation period, are identical, the land excess profit did not occur during the scheduled taxation period, and thus, the disposition of imposition was unlawful. As to the allegation that the defendant is unlawful, even if the land of this case was designated as an urban design area, the construction or development is not completely prohibited or restricted, and the officially assessed land price of December 31, 199, which is the expiration

B. As to the detailed statement of excess gains and the target idle land

(i)related Acts and subordinate statutes;

In Article 8 (1) 14 of the Act, such idle land shall be subject to taxation of excess profit tax as prescribed by the Presidential Decree, and in Article 8 (3) of the same Act, it shall not be regarded as idle land for the period prescribed by the Presidential Decree, notwithstanding the provisions of paragraph (1), with respect to the land falling under such idle land, etc. due to the prohibition of use due to the provisions of laws and regulations on the acquisition of the land, the loss, collapse of a ground building, or other inevitable reasons prescribed by the Presidential Decree. In addition, in cases where the use of such idle land is prohibited or restricted under the provisions of Acts and subordinate statutes after the acquisition of the land from subparagraph 1 of Article 23 of the Enforcement Decree of the Act, it shall be for three years from the date of prohibition or restriction of the use thereof, and where the use thereof is prohibited or restricted under the provisions of Acts and subordinate statutes prior to the enforcement of this Decree and it is also prohibited or restricted under the provisions of paragraph (3) of the Addenda (Presidential Decree No. 12198 of December 31, 1989)

On the other hand, Article 8-2 of the former Building Act (Special Cases concerning Buildings within Do Roads) provides for a special provision on the restriction on construction to enable the construction of buildings in the zones where urban design is established and announced by the Minister of Construction and Transportation with the approval of the Minister of Construction and Transportation after preparing an urban design as deemed necessary by the downtown, main roads, etc. and the head of Si/Gun to make it public

(2) Determination

Examining whether the above regulatory measure of Seoul Metropolitan Government, which was conducted in the use of the land of this case, constitutes a case where the purpose of the Act is to facilitate the efficient use of land by regulating the non-exercise of land, to prevent speculation due to long-term possession, to stabilize land prices, and to realize the equity in tax burden by recovering the abnormal increase in land prices by inducing disposal of non-use land, and to realize the equity in tax burden, the meaning of cases where the use of land is prohibited or restricted by the provisions of the Act and subordinate statutes refers to cases where the exercise of the right to use land is completely prohibited or restricted by the Act and subordinate statutes, or in cases where there is a partial prohibition or restriction, i.e., a special case concerning the method and scale of construction under the Building Act, even if there is a partial prohibition or restriction, and even if there is a subjective intention of the land user, if the use of land is recognized to be reasonable and reasonable, it cannot be construed as a case where the use is permitted under the Act and subordinate statutes and the restriction of the use under the Act.

Therefore, even if the land in this case was constructed through joint development with adjacent land, or was designated as an urban design zone with the content that limits the need for deliberation by the Seoul Metropolitan Government Urban Design Coordination Committee, it cannot be deemed that the use is legally prohibited or restricted. Therefore, it is legitimate that the defendant imposed tax on the land in this case by deeming it idle land as the land

C. As to the standard publication price at the end of the scheduled taxable period

(1) Relevant statutes

Under the law, the excess profit tax shall be imposed on the land excess profit tax from January 1 of the year in which the taxable period begins to 3 years pursuant to Article 6 of the Act, and from January 1 of the year in which the taxable period begins to December 31 of the year in which the taxable period is terminated. However, Article 23 (1) of the Act provides that the land price may rapidly increase or may increase and be imposed on the land in an area designated and publicly notified by the Commissioner of the National Tax Service, which is located in the area designated and publicly notified by the Commissioner of the National Tax Service. Article 11 (1) of the Act provides that the tax base shall be calculated by deducting the land price calculated by the commencement date of the taxable period from the land price at the end of the taxable period, and the improvement cost and capital expenditure for the idle land, etc. shall be calculated by deducting the land price at the beginning date of the taxable period from the land price at the end of the taxable period. Article 33 (2) of the Enforcement Decree

(ii)judgments

Article 10 of the Public Notice of Values and Appraisal of Lands, etc. Act provides that the standard price for individual parcels of land shall be calculated on the basis of the standard price for the standard lot of land publicly announced by the Minister of Construction and Transportation at the time of January 1 of each year under the provisions of Article 10 of the Public Notice of Values and Appraisal of Lands, etc. Act. This is an individual standard price determined to the head of a Si/Gun/Gu through a joint investigation by the Prime Minister pursuant to Article 5 of the above Act. The standard price for individual parcels of land shall not be determined on January 1 of each year, since the standard price for individual parcels of land shall not be determined on the 1st day of each year under the land price survey determination system which is implemented once every year. Thus, it is reasonable to view that the standard price for individual parcels of land as of December 31, 199 and the standard price for individual parcels of land as of January 1, 191, which is then calculated on the 10th day of the next taxable period and the 10th day of the next taxable period.

In addition, Articles 3(3) and 4(6) of the Act provide that the excess acquisition tax shall be calculated by allocating the land subject to taxation, in the case of a change in the owner’s land subject to taxation, and in the case of a change in the owner’s land subject to taxation during the taxation period, the taxation period, and the standard inflation rate for the holding period, and Article 11(3) and (5) of the Act provide that the excess acquisition tax shall be calculated by allocating the land price. According to Articles 34 and 35 of the Enforcement Decree of the Act, and Article 25 of the Enforcement Rule, where there is no publicly announced standard land price that became the base date, the land price increase shall be calculated by taking into account the land price increase rate for the non-taxation period, the rate of land price increase, the rate of land price increase, and the rate of land price increase shall be calculated by applying the individual standard land price publicly notified as the base date on December 31, 190.

Therefore, the plaintiff's claim seeking the revocation of the disposition of imposition of the land excess profit tax in this case is dismissed as it is without merit, and the costs of lawsuit are assessed against the losing plaintiff. It is so decided as per Disposition.