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(영문) 대법원 1984. 11. 27. 선고 83누375 판결
[방위세부과처분취소][공1985.1.15.(744),81]
Main Issues

Whether income from the transfer of real estate to the State, etc. is subject to exemption from income tax and defense tax after the execution authorization of a land readjustment project or the determination and public notification of urban planning;

Summary of Judgment

It cannot be deemed that the approval of the execution of a land readjustment project under Articles 9 and 32 of the Land Readjustment Projects Act, or the determination and public notice of urban planning under Articles 12 and 13 of the Urban Planning Act, and the approval of the land register can not be considered as the project approval under Article 14 of the Land Expropriation Act. Thus, even if the land was transferred to the State after the Minister of Construction and Transportation's public notice of project approval under the Land Expropriation Projects Act and the Seoul Special Metropolitan City Mayor's public notice of the urban planning and cadastral approval obtained from the Minister of Construction and Transportation, it cannot be deemed as being transferred after the public notice of project approval under subparagraph 1 of Article 17 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9960 of Jul. 11, 19

[Reference Provisions]

Article 2(1) of the Defense Tax Act (amended by Act No. 3198, Dec. 28, 1979); Article 3(3) of the Defense Tax Act; Article 6(2) of the former Income Tax Act (amended by Act No. 3175, Dec. 28, 1979); Article 17 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9960, Jul. 11, 1980); Article 14 of the Land Expropriation Act; Articles 12, 13, 24, and 25 of the Urban Planning Act; Articles 9 and 32 of the Land Readjustment Projects Act

Reference Cases

Supreme Court Decision 83Nu544 Decided September 25, 1984

Plaintiff-Appellant

Plaintiff

Defendant-Appellee

The Director of Gangnam District Office

Judgment of the lower court

Seoul High Court Decision 82Gu738 delivered on May 26, 1983

Text

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

Reasons

The grounds of appeal are examined.

According to Articles 2(1) and 3(3) of the Defense Tax Act (amended by Act No. 3198, Dec. 28, 1979) which was enforced at the time of the transfer of the land of this case, a taxpayer under the Income Tax Act has a liability to pay the income tax, but the income tax on the income stipulated in Article 6(2)1 of the Income Tax Act shall not be subject to the defense tax, and Article 6(2)1 of the former Income Tax Act (amended by Act No. 3175, Dec. 28, 1979) provides that the income from the transfer of the assets to be used for the projects prescribed by the Presidential Decree directly to the State or local governments under the conditions as prescribed by the Presidential Decree shall be exempted from the income tax. Article 17(2)1 of the Enforcement Decree of the said Act (amended by Presidential Decree No. 9960, Jul. 11, 1980) provides that Article 17(2)1 of the Land Expropriation Act shall not apply mutatis mutandis to the land or the land for public projects under Article 2(3) of the Urban Planning Act.

According to the reasoning of the judgment below, the court below held that the defense detailed and disposition of this case were legitimate on August 24, 1971, since the Minister of Construction and Transportation announced the project implementation approval under the Land Readjustment Project Act as public notice No. 77 of the Ministry of Construction and Transportation with respect to the land of this case, and the head of Seoul Special Metropolitan City on December 23, 1980 obtained urban planning decision (public building site) and cadastral approval from the Minister of Construction and Transportation on December 31, 1980, when the plaintiff exchanged the land with the Commissioner of National Tax Service to pay to the plaintiff, the defense tax of this case is not exempted, and there is no evidence to acknowledge that the Commissioner of the National Tax Service promised not to impose the defense tax of this case on the plaintiff at the above exchange consultation, and there is no violation of the rules of evidence or misapprehension of legal principles as alleged in the grounds for appeal.

Therefore, the appeal of this case is dismissed as without merit, and the costs of appeal are assessed against the losing party and it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jong-soo (Presiding Justice)

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심급 사건
-서울고등법원 1983.5.26.선고 82구738
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