In cases where only a part of the co-owner of the co-owned farmland is re-established or self-developed, whether the co-owner can be deemed to constitute re-owned or self-owned farmland excluded from idle land under the Land Excess Profit Tax Act (negative)

If several persons own the land at issue as to whether it constitutes a re- village or self-owned farmland excluded from idle land under the Land Excess Profit Tax Act, according to Article 263 of the Civil Act, co-owners may freely dispose of their shares, and use and profit from the whole share of co-ownership at the ratio of share. As such, insofar as one of the co-owners does not reside at the location of the land or cultivate his/her share, other co-owners may not be deemed to have re-villageed and re-developed his/her land subject to taxation on the ground that he/she did not cultivate the land.

Article 8 (1) 5 (a) and (b) of the former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994); Article 12 (4) of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994)

Plaintiff

Racing Head of the Tax Office

Daegu High Court Decision 96Gu6722 delivered on April 10, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

According to Article 8 (1) 5 (b) of the former Land Excess Gains Tax Act (amended by Act No. 4807 of Dec. 22, 1994; hereinafter the same), the court below held that each of the land in this case is a farmland designated as a natural green area under the Urban Planning Act, and that "area prescribed by Presidential Decree" is excluded from "area on which the land excess profit tax is imposed" under Article 12 (4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1470 of Dec. 31, 1994), since the land in this case is farmland designated as a natural green area under the same Act, and the land designated as a natural green area under the Urban Planning Act is subject to the disposition of the above excess profit-making under Article 8 (1) 5 (b) of the same Act, and therefore, the land in this case cannot be viewed as being subject to the disposition of each of the above Article 8 (1) 5 (b) of the same Act on the ground that the plaintiff's land in this case is not subject to taxation of each of this case.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)