Whether income from the exchange of land with the State is exempted from income tax and defense tax after the execution of a land readjustment project and the determination and public notice of urban planning and the cadastral approval thereof are made (negative)

Article 12 and Article 13 of the Urban Planning Act, the determination and public notice of urban planning under Article 13 of the Urban Planning Act, the approval of the land pointed out, or the approval of the execution of the land readjustment project under Article 9 and Article 32 of the Land Readjustment Project Act shall not be deemed to fall under the public announcement of project approval under Article 14 of the former Enforcement Decree of the Land Expropriation Act (amended by Presidential Decree No. 10120, Dec. 31, 1980). Thus, even if the Minister of Construction and Transportation gives public notice of the project approval under Article 14 of the Land Expropriation Act, and the Mayor of Seoul Special Metropolitan City obtains the approval of urban planning and cadastral approval from the Minister of Construction and Transportation, it is not recognized that the implementation plan was prepared and approved by the Minister of Construction and Transportation under Article 25 of the Urban Planning Act, so with respect to the income accrued from the land exchange between the State and the public notice of such fact-finding, Article 3 (3) of the former Defense Tax Act (amended by Act No. 3476, Dec. 3

Articles 2(1) and 3(3) of the former Defense Tax Act (amended by Act No. 3476 of Dec. 31, 1981); Article 6(2)1 of the former Income Tax Act (amended by Act No. 3271 of Dec. 13, 1980); Article 17 subparag. 1 of the former Enforcement Decree of Income Tax Act (amended by Presidential Decree No. 10120 of Dec. 31, 1980)

Supreme Court Decision 83Nu380 Decided November 13, 1984 delivered on September 25, 1984; 83Nu375 Delivered on November 27, 1984

Plaintiff

The Head of the Maternization Tax Office

Seoul High Court Decision 82Nu425 delivered on May 4, 1983

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

According to Article 2(1) and Article 3(3) of the Defense Tax Act which was enforced at the time of the transfer of the land in this case (amended by Act No. 3476 of Dec. 31, 198), a taxpayer under the Income Tax Act has only the defense tax liability, but the income tax on the income as prescribed in Article 6(2)1 of the Income Tax Act may not be imposed. Article 6(2)1 of the former Income Tax Act (amended by Act No. 3271 of Dec. 13, 1980), Article 6(2)1 of the same Act provides that a land readjustment project under Article 17 subparag. 1 of the Land Expropriation Act (amended by Presidential Decree No. 10120 of Dec. 31, 1980) provides that an operator shall be exempted from the income tax if he transfers the assets to the State or a local government under the conditions as prescribed by the Presidential Decree, and Article 17(2)1 of the same Act provides that a land readjustment project shall not be approved after the public announcement of the Urban Planning Act.

According to the reasoning of the judgment below, the court below is just in holding that there is no sufficient evidence to acknowledge that the Minister of Construction and Transportation made a public announcement of the authorization for the project implementation of the land of this case under the Land Rearrangement and Rearrangement Projects Act as the construction section No. 77 from August 24, 1971, and that the Seoul Special Metropolitan City Mayor obtained the approval of the Minister of Construction and Transportation from the Minister of Construction and Transportation on December 23, 1980, the implementation plan was prepared and obtained the approval of the Minister of Construction and Transportation pursuant to Article 25 of the Urban Planning Act. Thus, even before the public announcement of the project approval, the reduction and exemption provision of Article 3 (3) of the Defense Tax Act is not applicable to the land exchange between the plaintiff and the State on December 31, 1980, and at the time of the above exchange consultation, there is no sufficient evidence to acknowledge that the Commissioner of the National Tax Service promised not to impose the defense tax of this case, and there is no violation of the rules of evidence or misunderstanding of defense taxes, and there is no violation of law.

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 Kim Young-ju (Presiding Justice)