(a) Whether a registered housing constructor who acquired land may be exempted from collecting the reduced or exempted tax amount even if it does not meet the requirements for exclusion from collection under the proviso of Article 50 (3) of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act, if there are justifiable grounds for not completing

A. The legislative intent of Article 62 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4451 of Dec. 27, 191) is to facilitate the construction of national housing by smoothly supplying idle land as a construction site of national housing. However, the interpretation of the tax law should be strictly interpreted not only the taxation requirements but also the requirements for tax reduction and exemption from benefits to taxpayers. Article 62(1) of the same Act provides that the requirements for collecting the exempted tax amount are limited to cases where a registered housing constructor fails to construct national housing on the relevant land without simply stipulating that the requirements for collecting the exempted tax amount are not simply a case where a registered housing constructor fails to construct national housing on the relevant land. Thus, the term “when a registered housing constructor fails to construct national housing on the relevant land” under Article 62(2) shall be deemed to mean cases where a registered housing constructor fails to complete national housing on the relevant land. Thus, the proviso of Article 50(3) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 13545 of December 31, 198, 190) shall not be excluded.

Article 62 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4451 of Dec. 27, 1991); Article 50 (3) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 13545 of Dec. 31, 1991)

Shin Construction Co., Ltd., Counsel for the defendant-appellant

Head of the North Mine District Tax Office

Gwangju High Court Decision 93Gu3003 delivered on November 17, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

Article 62 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4451 of Dec. 27, 191; hereinafter the same) provides for reduction, exemption, and collection of transfer income tax on the land for national housing construction. Paragraph (1) provides that where a national transfers the land (excluding the land prescribed by the Presidential Decree) to a housing constructor registered under Article 6 of the Housing Construction Promotion Act as a construction site for national housing, the tax amount equivalent to 50/100 of transfer income tax, etc. shall be reduced or exempted. Paragraph (2) provides that where a registered housing constructor fails to construct a national housing on the land as prescribed by the Presidential Decree, or where a cause prescribed by the Presidential Decree occurs, an amount equivalent to the tax amount reduced or exempted pursuant to paragraph (1) shall be collected from the registered housing constructor in addition to income tax or corporate tax. The legislative purport of the above provision is to facilitate the supply of idle land as a construction site for national housing. However, the interpretation of the National Housing Act provides for the case where the registered housing constructor does not simply impose benefits to the taxpayer.

In addition, the proviso of Article 50 (3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13545, Dec. 31, 1991; hereinafter the same) provides that a registered housing constructor who acquired land is unable to construct a national housing on the land in accordance with the provisions of land expropriation, urban planning, or other Acts and subordinate statutes. Thus, even if there are justifiable grounds for not constructing a national housing on the land, the collection shall not be excluded on the ground that it does not meet the above exclusion requirements.

The court below determined that the Plaintiff’s acquisition of the instant land and the instant land and the instant building were transferred to ASEAN Construction Co., Ltd. for its internal reasons without completion, and that the completion of the building on the instant land was not the Plaintiff but the above ASEAN Construction Co., Ltd., as long as it is evident that the transfer of the instant land was accompanied by the approval of change of the competent authority’s business plan (change of the project owner) under Article 33 of the Housing Construction Promotion Act, and that the said ASEAN Construction Co., Ltd. is the above ASEAN Construction Co., Ltd., and even if the Plaintiff acquired the instant land and used it for other purposes, rather than using it for the same purposes, it was legitimate to impose tax reduction or exemption under Article 50(3) of the Enforcement Decree of the National Housing Construction Promotion Act, which was collected by adding the amount equivalent to the tax reduction or exemption amount to corporate tax. The issue of whether the Plaintiff’s assertion as to the transfer of the instant land to ASEAN Construction Co., Ltd. does not affect the above conclusion.

The Supreme Court Decisions 91Nu10725 Decided June 9, 1992 and 94Nu705 Decided April 26, 1994 pointing out the theory of the party members are all different from this case, and it is not appropriate to invoke this case.

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 Lee Don-hee (Presiding Justice)