Whether “severked land” under Article 234-9(2)6 of the former Local Tax Act includes land for public facilities (affirmative)

In light of the purport of Articles 46(2) and 54(1) of the former Land Readjustment Projects Act (amended by Act No. 6252 of Jan. 28, 2000), Article 8 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16933 of Aug. 2, 2000), Article 3 of the Enforcement Rule of the same Act (amended by Ordinance No. 260 of the Ministry of Construction and Transportation of Aug. 30, 2000), and Articles 27(1) and 33(1) of the Urban Development Act (amended by Act No. 6312 of Dec. 29, 200) related thereto, the land for which the project implementer failed to set the project plan or the implementation plan under Article 234-9(2)6 of the former Local Tax Act (amended by Act No. 6852 of Dec. 30, 202) is included in the land for which the project implementer’s project implementation plan is deferred or its purpose.

Article 234-9 (2) 6 (see current Article 183 (2) 6) of the former Local Tax Act (Amended by Act No. 6312, Dec. 29, 2000; Act No. 6852, Dec. 30, 2002); Articles 46 (2) and 54 (1) of the former Land Readjustment Projects Act (Amended by Act No. 6252, Jan. 28, 2000); Article 8 of the former Enforcement Decree of the Land Readjustment Projects Act (Amended by Presidential Decree No. 16933, Aug. 2, 2000); Article 3 of the former Enforcement Rule of the Land Readjustment Projects Act ( repealed by Ordinance No. 260, Aug. 30, 200); Articles 27 (1) and 3 (1) of the Urban Development Act

Constitutional Court Decision 2005Hun-Ba82 Decided May 25, 2006 (Hun-Ba116, 811)

The Land Partition and Rearrangement Association (Law Firm Rate, Attorneys Jeong Jong-jin et al., Counsel for the plaintiff-appellant)

Po Port Market (Attorney Shin Sung-sung, Counsel for defendant-appellant)

Daegu High Court Decision 2003Nu1807 delivered on November 26, 2004

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

We examine the grounds of appeal.

Article 234-9 (1) (main sentence) of the former Local Tax Act (amended by Act No. 6312, Dec. 29, 200) provides that "any person who actually owns land under Article 234-8 as of the tax base date for aggregate land tax shall be liable to pay aggregate land tax." Paragraph (2) of the same Article provides that "any person falling under any of the following subparagraphs as of the tax base date for aggregate land tax shall be liable to pay aggregate land tax, notwithstanding the provisions of paragraph (1)" in subparagraph 6 that "a land readjustment project under the Land Readjustment Project Act, or a land substitution project under the Urban Development Act, which sets a specific land as land substitution plan or reserved land for the purpose prescribed by Presidential Decree No. 2063, Jan. 28, 200; hereinafter the same shall apply)" shall be appropriated as land substitution plan prescribed by Presidential Decree No. 2360, Dec. 29, 200>

In the same purport, the court below is justified in holding that the plaintiff, who was in the operator's status during each taxation period of this case, was liable to pay the aggregate land tax under Article 234-9 (2) 6 of the Local Tax Act before the above amendment and the amended Local Tax Act for the land in this case, which was designated as the reserved land as the land for public facilities without being designated as the substitute land at the time

The court below did not err in the misapprehension of legal principles as to the interpretation of Article 234-9 (2) 6 of the former Local Tax Act or the nature of the aggregate land tax and the principle of substantial taxation as otherwise alleged in the ground of appeal.

Therefore, the appeal is dismissed, and the 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 Shin Hyun-chul (Presiding Justice)