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(영문) 대법원 1996. 7. 9. 선고 96누3890 판결
[토지초과이득세부과처분취소][공1996.9.1.(17),2542]
Main Issues

Whether the basic deduction for calculating the tax base for one parcel of co-owned land is possible once for each co-owner (negative)

Summary of Judgment

In light of the purpose of the enactment of the Land Excess Profit Tax Act and the provisions of Articles 11(1) and 4(1) of the same Act, related provisions, and Article 40(5) of the Enforcement Decree of the same Act, in calculating the tax base of land excess profit tax, it is only possible to make the basic deduction under Article 11-2 of the same Act from the above excess gains on one parcel of land in the calculation of the tax base of land excess profit tax, on the ground that there are many persons sharing the land.

[Reference Provisions]

Article 4, Article 11, Article 11-2 of the Land Excess Profits Tax Act, Article 40 (5) of the Enforcement Decree of the Land Excess Profits Tax Act

Plaintiff, Appellant and Appellee

Plaintiff 1 and six others (Attorney Park Young-ok, Counsel for the plaintiff-appellant)

Defendant, Appellee and Appellant

Head of the Pakistan Tax Office

Judgment of the lower court

Seoul High Court Decision 94Gu16764 delivered on February 2, 1996

Text

The part of the lower judgment against the Defendant is reversed and that part of the case is remanded to the Seoul High Court. Each of the Plaintiffs’ appeals is dismissed and the costs of appeal are assessed against the Plaintiffs

Reasons

1. We examine the plaintiffs' grounds of appeal.

In light of the records, the fact-finding and judgment of the court below that the land of this case owned by the plaintiffs is not farmland in the village or self-governing land excluded from idle land, which is subject to the land excess profit tax, is justified and there is no error of law by misunderstanding facts or by misunderstanding legal principles. The grounds for appeal are without merit.

2. We examine the defendant's grounds of appeal.

Article 11 (1) of the Land Excess Gains Tax Act provides that the tax base of the land excess profit tax shall be calculated by parcel, except as otherwise provided in this Act. Except as otherwise provided in this Act, the amount prescribed in each subparagraph of the same paragraph shall be deducted from the standard market price of the land at the expiration of the taxable period less the standard market price of the land at the end of the taxable period, and the land excess profit in the taxable period shall be calculated by deducting the amount prescribed in each subparagraph of the same paragraph, and the basic deduction under the provisions of Article 11-2 shall be made again from the land excess profit. In addition, Article 11-2 (1) of the same Act provides that the tax base of the land excess profit tax shall be deducted from the land excess profit in the taxable period concerned in the calculation of the tax base of the land excess profit tax, and Article 4 (1) of the same Act provides that the owner of the land shall be liable to pay the land excess profit tax calculated by the area corresponding to his share, and Article 40 (5) of the Enforcement Decree of the same Act provides that the tax base of the land excess profit and other tax base of the land concerned shall not be apportioned.

The court below should calculate the tax base of the land excess profit tax by deducting the basic deduction amount from the excess profit tax calculated by parcel with respect to land subject to taxation, while the plaintiffs' co-ownership shares should be the one parcel, and the excess profit of the land of this case, which is one parcel, is divided by the plaintiffs' shares first, and then calculated the tax base by making each basic deduction once each, cannot be deemed to have committed an error of law which affected the conclusion of the judgment by misapprehending the legal principles as above concerning the basic deduction at the time of calculating the tax base of land excess profit tax. The defendant's assertion pointing this out

3. Therefore, the part of the judgment below against the defendant is reversed, and this part of the case is remanded to the Seoul High Court. Each of the plaintiffs' appeals is dismissed, and the costs of appeal are assessed against the plaintiffs. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Jae-soo (Presiding Justice)

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