In the case of selling or disposing of the remaining pro rata land after constructing an apartment complex, whether it can be a justifiable ground for the disposition of sale solely on the ground that such acquisition is inevitable.

According to Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 13870 of Mar. 6, 1993) and Article 84-4 (4) 10 of the Enforcement Decree of the Local Tax Act, where a corporation which intends to build, supply, or rent a house does not use the land acquired for housing construction for a period of four years from the date of its acquisition, or sells or disposes of it to others within four years, the heavy tax rate shall apply since the land concerned does not constitute "land not deemed non-business land of a corporation". However, if there are justifiable reasons for the disposition of non-use or sale, it shall be excluded from the scope of non-business land, and the heavy tax rate shall be excluded from the application of the heavy tax rate, and the same shall apply to the case of the non-business land remaining after the construction of the house. Even if the corporation acquired a pro rata land inevitably in the course of performing the housing construction project, such circumstance alone alone does not make it impossible to directly conclude the sale of the land.

Article 112(2) of the Local Tax Act, Article 84-4(4)10 of the Enforcement Decree of the same Act, Article 84-4(1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 13870 of March 6, 1993)

[Plaintiff-Appellant] Plaintiff 1 and 10 others (Law Firm Gyeong, Attorneys Lee Dong-young et al., Counsel for plaintiff-appellant)

Columno Construction Co., Ltd.

Jeonju Market

Gwangju High Court Decision 92Gu1871 delivered on July 8, 1993

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, in full view of the evidence adopted by the court below, the court below: (a) purchased and acquired the instant land (11 lots) 23,706§³ as an apartment renewal zone between January 14, 1989 to August 26 of the same year, which was publicly announced as an urban planning district, as the urban planning district between January 14, 1989, and applied for a review on the location of apartment construction plan on February 20, 1990; and (b) notified the Defendant of the result of the site review on the condition that the land should be donated after the opening of an apartment access road and urban planning, the court below determined that the Plaintiff’s purchase of the instant land within 17,902 square meters among the instant land was to be made on the apartment site, access road, and urban planning, and that the remaining land was to be sold between June 7, 191, and that the Plaintiff’s purchase of the instant apartment site and the instant land for which the construction project was scheduled to be executed on July 13, 19, and 7.

However, according to Article 84-4 (1) and (4) 10 of the Enforcement Decree of the Local Tax Act, where a corporation which conducts the construction or lease of a house as its purpose business does not use the land acquired for housing construction for the purpose of housing construction for a period of four years after the date of its acquisition, or sells or disposes of it to another within four years, the heavy tax rate shall apply since the land does not constitute "land which is not deemed land for non-business use of a corporation" (Supreme Court Decision 90Nu7050 delivered on February 26, 191). However, the disposition of non-use or sale is excluded from the application of heavy tax rate because it is excluded from the scope of land for non-business use, and the same applies to the case of self-owned land remaining after construction of a house. Even if the plaintiff acquired a self-owned land in the course of carrying out a housing construction business, such circumstance alone does not make it impossible for the plaintiff to use it as a justifiable ground for non-business use without any justifiable ground as stated in its holding.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice)