[1] In a case where capital gains tax is reduced or exempted under Article 57 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4744 of March 24, 1994 among the Addenda of Act No. 4666 of December 31, 1993) pursuant to Article 16(3)2 of the former Addenda of the Regulation of Tax Reduction and Exemption Act (amended by Act No. 4764 of March 24, 1994), whether the restriction of capital gains tax reduction or exemption is subject to Article 119 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666 of December 31, 1993) (affirmative)

[2] In a case where capital gains tax on income accrued from the expropriation of land under the Land Expropriation Act and other Acts is reduced or exempted by the transitional measures under Article 16(3) of the Addenda of the former Tax Reduction and Exemption Control Act (amended by Act No. 4666 of Dec. 31, 1993) (amended by Act No. 4744 of Mar. 24, 1994), whether special rural development tax is exempt (negative)

[3] Whether Article 16 (3) 2 of the Addenda to the Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666 of Dec. 31, 1993) is unconstitutional (negative)

[1] Article 63(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 5584 of Dec. 28, 1998) and Article 16(3) of the Addenda of the same Act (amended by Act No. 4744 of Mar. 24, 1994) provide for the exemption or reduction of capital gains tax on income accruing from the transfer of land for public business purposes, etc. Article 119 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666 of Dec. 31, 1993) and Article 16(3) of the Addenda of the same Act (amended by Act No. 4744 of Dec. 24, 1993) provide for the exemption or reduction of capital gains tax on income accrued from the transfer of land for public business purposes, and Article 119 of the former Regulation of Tax Reduction and Exemption Act provides for separate provisions for the purpose and regulation of capital gains tax reduction and exemption under Article 16(3) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 13163).

[2] "The Act on the Regulation of Tax Reduction and Exemption" under Article 4 (6) of the former Enforcement Decree of the Act on Special Rural Development Tax (amended by Presidential Decree No. 15562 of Dec. 31, 1997) which provides for the subject of non-taxation of special rural development tax refers to the Act on the Regulation of Tax Reduction and Exemption, which was in force at the time of July 1, 1994, the enforcement date of the former Enforcement Decree. Article 4 (7) of the above Enforcement Decree is in mind of confusion arising from the application of the Act on the Regulation of Tax Reduction and Exemption, which was in force at the time of July 1, 1994, and Article 4 (6) of the former Enforcement Decree of the Act on the Regulation of Tax Reduction and Exemption (amended by the Restriction of Special Taxation Act No. 5584 of Dec. 28, 1998), and Article 6 (3) of the former Enforcement Decree of the Act on the Regulation of Tax Reduction and Exemption, which provides that special rural development tax shall not be exempted or exempted.

[3] The former Regulation of Tax Reduction and Exemption Act (amended by the Restriction of Special Taxation Act No. 5584 of Dec. 28, 1998) has been amended several times in the direction of relaxing the tax-favored measures, such as by newly setting the limit of reduction and exemption and reducing the amount of comprehensive reduction and exemption even in the case of reduction and exemption as above. Since the Act on the Regulation of Tax Reduction and Exemption (amended by the Act No. 4666 of Dec. 31, 1993) lowers the rate of reduction and exemption on the transfer income tax in the above case above, the Addenda of the Act on the Regulation of Tax Reduction and Exemption (amended by the Restriction of Special Taxation Act No. 5584 of Dec. 28, 1993) (amended by the previous Act No. 4666 of Mar. 24, 1994) provides for the reduction and exemption of transfer income tax on the land under the previous Act No. 1319, Dec. 31, 1993).

[1] Article 63(1) (see current Article 77(1)), Article 119 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 5584 of Dec. 28, 1998), Article 16(3) of the Addenda (amended by Act No. 4744 of Mar. 24, 1993); Article 57 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4744 of Dec. 31, 1993); Article 4 subparag. 12 of the Act on Special Rural Development Tax (amended by Presidential Decree No. 15562 of Dec. 31, 1997); Article 97 of the former Restriction of Tax Reduction and Exemption Act (amended by Act No. 4744 of Dec. 31, 1993); Article 16(3) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Act No. 15562 of Dec. 31, 1997)

[1] Supreme Court Decision 93Nu18761 delivered on April 15, 1994 (Gong1994Sang, 1525), Supreme Court Decision 95Nu1034 delivered on January 26, 1996 (Gong1996Sang, 822), Supreme Court Decision 97Nu6292 delivered on July 9, 199 (Gong199Ha, 1653), Supreme Court Decision 97Nu1587 delivered on December 26, 199 (Gong198Sang, 438), Supreme Court Decision 97Nu18516 delivered on July 24, 1998 (Gong198Ha, 2257)

Plaintiff (Attorney Kim Ba-young, Counsel for the plaintiff-appellant)

Head of the tax office

Busan High Court Decision 96Gu14418 delivered on July 30, 1997

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Article 63(1)3 of the Regulation of Tax Reduction and Exemption Act (wholly amended by Act No. 4666 of Dec. 31, 1993, by Act No. 5584 of Dec. 28, 1998; hereinafter in this paragraph, referred to as the "amended Reduction and Exemption Act") provides for the reduction and exemption of transfer income tax on income accruing from the expropriation of land, etc. under the Land Expropriation Act and other Acts, and Article 63(1)3 of the former Regulation of Tax Reduction and Exemption Act (wholly amended by Act No. 4666 of Dec. 31, 1993; hereinafter in this paragraph, referred to as the "former Regulation of Tax Reduction and Exemption Act") and Article 57 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666 of Mar. 24, 1994) provides that the total amount of reduction and exemption of transfer income tax on income exceeding 160 billion won under Article 16(3)2 of the Addenda of the Land Expropriation Act shall not be transferred within the previous 19-197.

Article 63(1) of the amended Early Reduction and Exemption Act and Article 16(3) of the Addenda thereto provide for the reduction and exemption of capital gains tax on income accrued from the transfer of land, etc. for public project, and Article 119 of the Addenda provides for the separate application of the provisions governing the legislative purpose. Meanwhile, Article 16(3) of the Addenda of the amended Early Reduction and Exemption Act provides for the case of reduction and exemption under Article 63(1) of the amended Reduction and Exemption Act, which provides for the reduction and exemption of capital gains tax on income accrued from the transfer of land, etc. for public project, and provides for the case of reduction and exemption under Article 63(1) of the amended Reduction and Exemption Act, which provides for the reduction and exemption of capital gains tax on income from the transfer of land, etc. for public project, including the case of reduction and exemption under Article 63(1) of the amended Reduction and Exemption Act and Article 16(3) of the Addenda Article 19 of the amended Reduction and Exemption Act for the purpose of Article 16(3) of the amended Reduction and Exemption and Exemption Act.

The judgment of the court below to the same purport is just and there is no error in the misapprehension of legal principles as to the aggregate limit of capital gains tax reduction or exemption as asserted by the plaintiff.

2. Regarding ground of appeal No. 2

Article 4 (12) of the Act on Special Rural Development Tax (hereinafter referred to as the "Special Agricultural and Fishing Villages Tax") stipulates that special agricultural and fishing villages tax (hereinafter referred to as the "special agricultural and fishing villages tax") should be exempted for the purpose of securing national competitiveness, such as technology and human resources development, formation of property of low-income earners, public works, etc., and for the efficient operation of the national economy, and Article 4 (6) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 15562 of Dec. 31, 1997; hereinafter referred to as the "Enforcement Decree") provides that special agricultural and fishing villages tax shall be exempted for the purpose of non-taxation, and Article 4 (7) of the Enforcement Decree of the Special Agricultural and Fishing Villages Tax Act provides that special agricultural and fishing villages tax under subparagraphs 1 through 3 (hereinafter referred to as the "Special Agricultural and Fishing Villages Tax Act") shall not be subject to reduction or exemption under the provisions of Article 4 (1) through 6 of the same Act or the provisions of Article 16 (3) of the same Act.

According to the above provisions, the "Act on the Reduction and Exemption of Agricultural Taxation" under Article 4 (6) of the Enforcement Decree of the Act on the Reduction and Exemption of Agricultural Taxation refers to the Act on the Reduction and Exemption of Agricultural Taxation, which was in force at the time of July 1, 1994, which was the enforcement date of the original Enforcement Decree, and Article 4 (7) of the Enforcement Decree provides that even if the Act on the Reduction and Exemption of Agricultural Taxation is subject to the transitional Measures under Article 16 (3) of the Addenda of the above Article 4 (6) of the Enforcement Decree, if the Act on the Reduction and Exemption of Agricultural Taxation is subject to the reduction and exemption of the same purport as that of the non-taxation under each subparagraph of Article 4 (6) of the Enforcement Decree on the Reduction and Exemption of Agricultural Taxation Act (see, e.g., Supreme Court Decisions 97Nu1587, Dec. 26, 197; 97Nu18516, Jul. 24, 1998).

The judgment of the court below to the same purport is just and there is no error in the misapprehension of legal principles as to non-taxation under Article 4 (7) of the Enforcement Decree as asserted by the plaintiff.

3. As to the third ground for appeal

With respect to the transfer income tax on the income accrued from the expropriation of land under the Land Expropriation Act and other Acts, it has been amended several times in the direction of relaxing the taxation-related measures such as newly setting the limit of reduction or exemption and reducing the amount of comprehensive reduction or exemption again, even if it is reduced or exempted as above, the reduction or exemption of transfer income tax on the income accrued from the expropriation of land, etc. under the Land Expropriation Act and other Acts after setting the exemption exemption exemption rate later, and then reducing the amount of comprehensive reduction or exemption again, etc. In this case, Article 63 of the Protocol amended by Act No. 4666 of Dec. 31, 1993 provides for the reduction or exemption rate of transfer income tax on the above cases under Article 16 (3) 2 of the Addenda (amended by Act No. 4744 of Mar. 24, 1994). Thus, it is difficult to achieve the stability of the previous tax reduction or exemption rate between the taxpayers under the Land Expropriation Act and other Acts prior to December 31, 1993.

The ground of appeal on this point is without merit.

Meanwhile, the Agricultural Special Tax Act was enacted on March 24, 1994 by Act No. 4743 and enforced on July 1, 1994 for the purpose of enhancing the competitiveness of agriculture and fisheries, expanding infrastructure for rural industries, and securing financial resources necessary for rural area development projects. Thus, there is no trust or right to acquire the same kind of tax as agricultural special tax prior to its enforcement that there was no tax liability prior to its enforcement.

The ground of appeal on this point is without merit.

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

Justices Lee Im-soo (Presiding Justice)