[1] Whether a taxation can be asserted immediately on the ground that the provisional rating set or modified under Article 46 of the former Enforcement Rule of the Local Tax Act for the land scheduled for substitution, etc. was erroneous (negative)

[2] Continuation period of provisional grade

[3] Legal nature of additional tax

[1] Where a land scheduled for replotting is designated under the Land Readjustment and Rearrangement Projects Act, a landowner or interested person who has an objection to the establishment or revision of a provisional grade under Article 46 of the former Enforcement Rule of the Local Tax Act (amended by the Ordinance of the Ministry of Home Affairs No. 668 of Dec. 30, 1995), which is the basis of the standard market price of the taxable price for the land within the project district, shall not immediately dispute the taxation disposition on the ground that the provisional grade was established or revised without following the procedure for remedy, and that the provisional grade was wrong.

[2] According to Article 46 (2) of the former Enforcement Rule of the Local Tax Act (amended by Ordinance of the Ministry of Home Affairs No. 668 of Dec. 30, 1995), where the land whose provisional grade has been set significantly changed in its dignity or circumstances, the provisional grade may be changed according to the grade of the land whose land category, character and circumstances are similar to those of the land. Thus, barring any special circumstance, the provisional grade of the land scheduled for replotting shall maintain its effect for the period from the standard date of determination until it is changed by the revised decision, etc.

[3] Additional tax under tax law is an administrative sanction imposed without asking intentional or negligently, as prescribed by the Act, in cases where a taxpayer violates his/her duty to report or pay taxes without justifiable grounds in order to facilitate the exercise of the right to impose taxes and the realization of tax claims.

[1] Article 111(2) of the former Local Tax Act (amended by Act No. 4995 of Dec. 6, 1995); Article 80(1) and Article 80-2 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14878 of Dec. 30, 1995); Articles 44 and 46 of the former Enforcement Rule of the Local Tax Act (amended by Ordinance No. 668 of Dec. 30, 1995) / [2] Article 46 of the former Enforcement Rule of the Local Tax Act (amended by Ordinance of the Ministry of Home Affairs No. 668 of Dec. 30, 1995) / [3] Article 47 of the Framework Act on National Taxes; Articles 41 and 81 of the Corporate Tax Act

[1] Supreme Court Decision 90Nu5092 decided Jan. 15, 1991 (Gong1991, 778) Supreme Court Decision 90Nu8343 decided Apr. 9, 1991 (Gong1991, 1394) Supreme Court Decision 90Nu9629 decided Jul. 26, 1991 (Gong1991, 2269), Supreme Court Decision 92Nu7818 decided Mar. 23, 1993 (Gong1993, 1314, 13195), Supreme Court Decision 93Nu23565 decided Mar. 28, 195 (Gong195Sang, 179, 196Nu94965 decided Jul. 14, 1995) (Supreme Court Decision 94Nu969795 decided Jul. 196, 195)

Lee Jong-soo (Attorney Kim Jong-soo, Counsel for the defendant-appellant)

Director of the tax office

Seoul High Court Decision 96Gu30040 delivered on April 16, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On the first ground for appeal

The Constitutional Court rendered a ruling of inconsistency with the Constitution as to Article 60 of the former Income Tax Act (amended by Act No. 3098, Dec. 22, 1994; hereinafter the same shall apply) applied by the defendant while imposing the instant taxation based on standard market price in a concurrent case including 91Hun-Ba1, Nov. 30, 1995. The above ruling of inconsistency with the Constitution is a ruling of allowing provisional application of Article 60 of the former Income Tax Act as it is until the amended Act becomes effective (see Supreme Court Decisions 96Nu1068, Mar. 28, 1997; 96Nu1327, Mar. 28, 1997; 96Nu1327, Mar. 28, 1997); and Article 60 of the former Income Tax Act (amended by Act No. 4809, Dec. 22, 199; hereinafter the same shall apply).

2. On the second ground for appeal

Article 11(2) of the Local Tax Act (amended by Act No. 4269 of Dec. 31, 190), Article 80(1)1, and Article 80-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1303 of Jun. 29, 190), and Article 46 of the Enforcement Decree of the same Act (amended by Ordinance No. 510 of Jul. 26, 1990), in a case where a land substitution is designated under the Land Expropriation and Rearrangement Projects Act, the standard market price of the land within the said land substitution area is determined by the provisional grade No. 97, which is newly established after the date of the designation of the land substitution area, and its price is determined by the provisional grade No. 97, which is the same as that of the previous land substitution area no later than the 97th day before the determination of the land substitution area becomes final and conclusive.

According to the reasoning of the judgment below, the court below determined that each of the tax dispositions of this case, which calculated the acquisition value of the land of this case on the basis of class 178 as the provisional grade of April 16, 1987, was revised to Grade 185 (the 187th class clerical error) on January 1, 1989, and that since the plaintiff acquired it on September 1, 1988 during the above period, it was lawful. In light of the records and the above legal principles, the court below's determination is correct, and there is no error in the misapprehension of legal principles as to the acquisition value and the determination of land rating as pointed out in the grounds of appeal.

3. On the third ground for appeal

Under the tax law, in order to facilitate the exercise of taxation rights and the realization of tax claims, administrative sanctions are imposed without asking for intention or negligence as prescribed by the law (see Supreme Court Decisions 95Nu92, Nov. 7, 1995; 95Nu3596, Feb. 9, 1996; 95Nu17274, Oct. 11, 1996, etc.).

According to the records, the additional tax on the transfer income tax and defense tax of this case is imposed as administrative sanctions against the plaintiff's failure to perform his duty of return and voluntary payment within the original final return period, and it does not result from the defendant's erroneous application of the land grade value at the time of the original disposition as alleged by the plaintiff, but re-revision or re-revision. Therefore, there is no ground for appeal stating that the additional tax imposition disposition is based on the defendant's cause attributable to the defendant, and thus, it is forced the plaintiff to suffer disadvantage beyond the limit of admission under the premise that

4. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)