Transferring interference (Attorney Seo-sik et al., Counsel for the plaintiff-appellant)

1. The head of Gangnam-gu and the head of Samsung Tax Office;

1. The head of Gangnam-gu Office of defendant on June 29, 1991 the determination of individual land price by the head of Gangnam-gu as to 38 large 1,652.2 square meters in Gangnam-gu, Seoul as of 890-38 large 1,652.

2. As of November 1, 1991, the disposition of imposition of the land excess profit tax amounting to KRW 280,375,330 against the Plaintiff shall be revoked.

3. The costs of lawsuit shall be borne by the defendants.

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or found by the statements in Gap evidence 1, Gap evidence 8, Eul evidence 14-1, 2, Eul evidence 18-20, Eul evidence 3, Eul evidence 5, Eul evidence 8, Eul evidence 12-1, 2, Eul evidence 17-1, 17-2, Eul evidence 19.

A. On November 25, 1987, the Plaintiff acquired and owned 38 ga 1,652.2 square meters of the Gangnam-gu Seoul, Chungcheongnam-dong 890 (hereinafter referred to as the “Sachi-dong land”), and on December 29, 1989, between 38 and 270.7 square meters of the same Gu (hereinafter referred to as the “Sachi-dong land”) respectively.

B. In determining the individual land price of the above substitute land on January 1, 1990, the head of Gangnam-gu selected as the reference land on the same 891-25 large 527.7 p.m. as the reference land, and conducted a survey on land characteristics by using the standard comparison sheet (Ratification sheet) provided by the Minister of Construction and Transportation on the basis of the officially announced land price of the above reference land, and then decided as 4,300,000 won per square meter. In determining the individual land price of January 1, 1991, the above 891-25 large 527.7 p.7 p.m. as of January 1, 1990 was excluded from the reference land, the head of Gangnam-gu determined as 90 p.m. price of the reference land on the ground that it was newly selected as the reference land at 891-57 large 654.6 p.m., 190 p. 100 won per 90 p.

C. On December 31, 1990, the head of the defendant Samsung District Tax Office imposed a disposition under Paragraph (2) of the Disposition against the plaintiff as of November 1, 1991, on the ground that the land price of the above large land and the reverse land was increased by more than 150/100 of the normal land price increase in comparison with the individual land price of January 1, 1990 as of January 1, 1990.

2. The parties' assertion

As to the Defendants’ assertion that each of the above dispositions is lawful, the Plaintiff asserts that each of the above dispositions should be revoked on the following grounds.

A. As to the determination of individual land price

First, in determining the price of individual land, the land which is deemed to have the value similar to that of the land should be selected as the reference land. However, in determining the price of individual land as of January 1, 1991, the above individual land price is unlawful in determining the price of the land which is the reference land of the same 890-41 to 328.5 square meters, which is the reference land of the land which is deemed to have the most similar value as of January 1, 1991, but which is the reference land of the same 891-57 to 654.6 square meters, which are different from that of the land and height restriction, without being selected as the reference land. Second, even if the selection of the reference land is lawful, the individual land price should be determined by comparing the characteristics of the land and that of the reference land in accordance with the standard comparison table provided by the Minister of Construction and Transportation, the above individual land price is unlawful.

B. On the imposition of land excess profit tax

First, as to the above-mentioned land, the imposition of the portion of the land excess profit tax is recognized as taxable object of the land excess profit tax for the scheduled period based on the individual land price determined illegally as above, and the imposition of the portion of the above-mentioned land is unlawful, and second, as to the above previous three-dong land, the Plaintiff acquired it to build a new building, but failed to build it until the end of the scheduled period of the imposition, and thus, it should not be excluded from the taxable object of the land excess profit tax, notwithstanding the fact that the above-mentioned land becomes taxable object as of the end of the scheduled period of imposition, the imposition of the above land excess profit tax

3. Determination

A. Whether the determination of individual land price is illegal

The decision of the price of individual land shall be made by using the standard comparison table (Ratification table) on the factors of the formation of the land price of the reference land and the land to be calculated by the Minister of Construction and Transportation as deemed necessary to calculate the land price on the basis of the officially announced land price of one or more reference land or land which is deemed to have the value similar to that of the land in question (Article 10(1)2 of the Public Notice and Appraisal of Land, etc. Act).

First of all, with regard to the determination of the price of individual land of this case, the above standard land selection is lawful, unless there are special circumstances, since the width of the road abutting on the above standard land and the width of the road adjoining on the ground of No. 3, No. 8, No. 12-1 and No. 2 are different from that of the above standard land, and the above 891-57, No. 654, Jun. 2, 199, which is selected as the comparison standard land is the land located adjacent to the above substitute land and the same land category is multi-site, and land is designated as a general commercial area under urban planning, and the above standard land is used for business purposes. In the case of shape and land, the above standard land selection cannot be concluded to have a similar utility value. Thus, the above standard land selection cannot be concluded to have been unlawful because there is a difference between the above standard land and the surrounding land and the surrounding land, and it cannot be concluded to have been a similar utility value of the standard land.

However, as seen above, in determining the individual land price of this case, the head of Gangnam-gu did not use the ratification sheet provided by the Minister of Construction and Transportation on the basis of the officially announced land price of the standard land and did not otherwise use it to increase the land price of the above standard land in the previous year (as of January 1, 1990) of the land to be land price of this case. The determination of the individual land price by this method shall first be prohibited in principle unless the land identical to the standard land price selected in the preceding year is selected as the standard land price, and the standard land and land are not changed in their respective utilization conditions. However, in determining the individual land price of this case on January 1, 1991, the standard land price of this case, which is different from the standard land price at the time of determining the individual land price of this case as of January 1, 1990, shall not be exempt from this point. Thus, the above individual land price determination as of January 1, 1991.

B. Whether the disposition imposing the land excess profit tax is unlawful

(1) If the land excess profit tax is imposed on the scheduled period on the ground that the land is subject to taxation on the basis of the price of the individual land determined illegally, the imposition of the tax is also unlawful. Since the determination of the individual land price as of January 1, 1991 on the land in the Gyeong-dong as of January 1, 1991 is unlawful as seen earlier, the part on the land in the imposition of the land excess profit tax of this case concerning the land in the above Gyeong-dong is ultimately unlawful.

(2) Article 8 (3) of the Land Excess Profit Tax Act (hereinafter "the Act") provides that "No land falling under idle land, etc. shall be deemed idle land, etc. for the period prescribed by the Presidential Decree, notwithstanding the provisions of paragraph (1) shall be deemed idle land, etc. for the prohibition of use due to the provisions of laws and regulations on acquisition of the land, loss of above ground buildings." Article 23 of the Enforcement Decree of the same Act provides that "it shall not be deemed as such period prescribed by the Presidential Decree, and if the land is acquired for the purpose of constructing a new building under subparagraph 3, it shall be one year from the date of its acquisition: Provided, That if the person who has obtained permission, applied for permission, etc., or applied for construction permission, or applied for it within one year from the date of its acquisition, it shall be deemed that the construction permission cannot be limited by the provisions of Article 4381 of the Building Act, but it shall be limited by the Presidential Decree No. 1980, Mar. 19, 198.

However, Gap evidence 4, Gap evidence 5, Nos. 12-1, 13, Gap evidence 21-2, Gap evidence 22-2, Gap evidence 26, Eul evidence 27, 28-28, and Eul evidence 1, 27 and 28-2, and Eul evidence 9-2, and the plaintiff filed an application to the head of Gangnam-gu Seoul Metropolitan Government for a restriction on construction permission of construction at the end of 19-7, 10-1, 2, and 9-2, which had been assigned to the urban design zone, and the plaintiff filed an application to the head of Gangnam-gu Seoul Metropolitan Government for a restriction on construction permission of construction at the end of 19-1, 2, 2, 466.9, 2, and 9-2, which had been applied to the head of Gangnam-gu Seoul Metropolitan Government for a restriction on construction permit of construction to newly construct an urban residential facility at the end of 19-2,000.

Therefore, the above reverse ginseng land is deemed to have been restricted from construction permission due to construction restriction for at least five days from December 7, 1990 to December 31 of the same year from which an application for deliberation on adjustment of urban design was filed. Thus, the above reverse ginseng land shall be excluded from idle land during the period from December 30, 1990 to January 4, 191, adding the above construction restriction period to the above construction restriction period. Since the above reverse ginseng land in the disposition of imposition of excess profit tax under the premise that it constitutes idle land as of December 31, 1990, the above reverse ginseng land shall also be deemed to be unlawful from the date of commencement of the above taxation period from the date of acquisition to December 30, 1990, the above excess three years from the date of commencement of the taxation period from the date of acquisition to the date of completion of the taxation period from December 30, 190, which should be excluded from the above idle land, and even if it does not fall under Article 3 (1) of the Act.

4. Therefore, since each of the dispositions of this case is all unlawful, the plaintiff's claim of this case seeking its revocation is justified, and the costs of lawsuit are assessed against the defendants who lost them. It is so decided as per Disposition.

Judges Ansan-tae (Presiding Judge)