Supreme Court Decision 2007Du13180 (No. 14, 2009)

Busan High Court Decision 2006Nu3773 (Law No. 18, 2007)

Only by changing land category due to change of land use, it cannot be viewed as a special reason to exclude the application of the officially announced land price before change.

In a case where a land category has been changed from a miscellaneous land to a site after the closure of a gas station, the category of the cadastral law has been changed due to the change of the purpose of use of the land. However, there is no "special circumstance that it is unreasonable to regard the land before the change of land category as the land price after the change of land category due to the change of the characteristics of the land which is the basic data for calculating

The contents of the decision shall be the same as attached.

Article 99 (Calculation of Standard Market Price)

Article 164 (Assessment of Standard Market Price of Land and Building)

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of capital gains tax of KRW 71,956,183, and capital gains tax of KRW 81,01,110 against Plaintiff LA on 03, 2005 to Plaintiff LA, shall be revoked in entirety.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances of the disposition;

A. On October 28, 2006, the Plaintiffs transferred each ownership share of 957.2 square meters (hereinafter “CCFD”) in total of 73-1, 40, 42, and 48-4 square meters (hereinafter “instant land”) in Nam-gu, Busan, ○○-dong, Busan, to ○○-dong, and filed a transfer income tax by calculating the transfer value applying the officially assessed individual land price (1.860,000,000 won) as of October 01, 2003 of the instant land.

B. Since the land category was changed due to the change of the purpose of use, the Defendant calculated the transfer value by applying 330,000 won as the appraised value of the land of this case, taking into account the appraisal value of the two appraisal institutions, on the ground that the land of this case constitutes "land without individual officially assessed value" under Article 99 (1) 1 (a) (proviso) of the former Income Tax Act (amended by Act No. 7335, Jan. 14, 2005; hereinafter referred to as the "Act") and Article 164 (1) 3 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705, Oct. 19, 2005; hereinafter referred to as the "Enforcement Decree"). Accordingly, on March 3, 2005, the Defendant imposed the KRW 71,956, 183, 81, 101, 101, and 10.

[Grounds for Recognition: Evidence A, Evidence Nos. 1, 2, 3, and Evidence Nos. 1, 2, and 3]

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

Article 99 (1) 1 (a) of the Act and Article 164 (1) 3 of the Enforcement Decree of the Act mean the land in a case where, even if the officially assessed individual land price as to the land prior to a land category change is publicly announced, the characteristics of the land, which is the basic data for calculating the officially assessed individual land price, are changed due to the land category change under the Cadastral Act, and it is deemed unreasonable to regard the land price prior to a land category change as such after a land category change. However, in the case of the land in this case, the land in this case cannot be deemed to have such special circumstances as above, and thus, the land in this case cannot be deemed to constitute the "land without a publicly notified individual land price." Therefore, the defendant's disposition of this case based on the premise that the land in this case

(b) Related statutes;

It shall be as shown in the attached Form.

C. Determination

1) The meaning of "land without individual publicly notified land" under the proviso of Article 99 (1) 1 (a) of the Act and Article 164 (1) 3 of the Enforcement Decree of the Act

Article 99 (1) 1 (a) of the Act provides that "the standard market price of the land shall be the amount assessed by such a method as prescribed by the Presidential Decree in consideration of the officially assessed individual land price of similar land in the vicinity of the place of tax payment," and Article 164 (1) of the Enforcement Decree of the Act provides that "the amount assessed by such method as prescribed by the Presidential Decree" as referred to in the proviso of Article 99 (1) 1 (a) of the Act refers to the amount assessed by the head of the district tax office having jurisdiction over the place of tax payment according to the comparative table under Article 10 (2) of the Act on the Public Notice of Land Price and the Evaluation of Land, etc., by deeming the neighboring land whose land formation factor is similar, such as the land category and the current use thereof, as the standard market price of the land shall be deemed the standard land price and the land price shall be the amount assessed by the head of the district tax office having jurisdiction

In light of the language and purport of the above provision, in particular, Article 9(1)1 (a) of the Act delegates the method of assessing the value of the land without a publicly assessed individual land price to the Enforcement Decree for the assessment of the value of the land without a publicly assessed individual land price, and if the publicly assessed individual land price is publicly notified, it cannot be deemed that the land is no publicly assessed individual land price for the mere reason that the land category has been changed under the cadastral law. "Land without a publicly notified individual land price" as referred to in Article 99(1)1 (a) of the Act and Article 164(1)3 of the Enforcement Decree of the Act refers to a land in a case where, even if a publicly notified individual land price for the land before a land category has been publicly notified due to a change of land category, there is a special circumstance where it is unreasonable to regard the publicly assessed individual

2) Whether the land of this case constitutes “land whose land category has been changed due to the change of use of “land” under the Cadastral Act

A) The Defendant issued the instant disposition on the premise that the land category of the instant land is changed due to the change of the purpose of use, and first, examined whether the instant land is land whose land category has changed due to the change of the purpose of use.

B) Article 2 subparagraph 7 of the Cadastral Act provides that "land category means a registration by classifying the kinds of land according to the main purpose of the land and in the cadastral record." In light of the fact that the main purpose of the land category in the Cadastral Act is the actual situation of the land which is the cause of the land category classification, and that the change of land category in various usage areas, specific-use district, specific-use district, specific-use district (hereinafter referred to as "specific-use district, etc.") under the National Land Planning and Utilization Act is not necessarily accompanied by the change of land category in the cadastral law, it is not the change of specific-use area, etc., but the change of use of the land under Article 164 (1) subparagraph 3 of the Enforcement Decree refers to the change of the actual

C) In addition to the whole purport of pleadings Nos. 1 through 6 and 13 through 17 (including the virtual numbers), the original land category of the instant land was 'TWD'. Around October 23, 1994, the Plaintiff's father, starting a gas station business with the trade name of 'TWD' from the instant land, 'TWD'. Accordingly, on March 14, 1997, the land category of the instant land was changed to miscellaneous land. The maximum DD abolished the gas station business on March 02, 200, and thereafter, the land category of the instant land was changed to 'TWD' on the instant land, which was the first-class neighborhood living facilities, and the building category of the instant land was changed to 'TWD' on the instant land, which is the first-class neighborhood living facilities, and its land category was changed to 'TWD' on the land, whose land category was changed to 'TWD' on June 20, 2004.

2) Whether there exist "special circumstances" to regard the officially assessed individual land price before the land category change as being unreasonable after the land category change due to the land category change.

As seen earlier, even if the land category was changed under the Cadastral Act, it shall be deemed unreasonable to regard the officially assessed individual land price before the land category change as the basic material for calculating the officially assessed individual land price after the change of land category. As such, "land without the publicly notified land price" shall be deemed to be "land". Thus, as to whether there is a "special circumstance" as to the land in this case, each of the above-mentioned statements, including Gap 7 through 11, 13 through 26, Eul 2, and 5 through 9 (including virtual numbers), the inquiry results on the representative director of the Korea Appraisal Board at the court of the trial at the same time, and the inquiry results on the representative director of the Korea Appraisal Board at the court at the same time, in full view of the following circumstances, it is difficult to view that there is "special circumstance" or there is no other evidence to acknowledge it otherwise.

① The original land category of the instant land on the public cadastral book was 'largest', and the land category was changed to miscellaneous land on March 14, 1997 as the land category was used as the site for gas stations. As the instant building was constructed on June 16, 2004, the land category on the public cadastral book was changed to 'largest' on June 16, 2004. In the process of changing the instant land from the site for gas stations to the site for the instant building, there was no change in the road conditions such as notification of land, shape, and defense, road surface, road distance, etc.

② According to each "the land characteristics survey table and decision-making report" as of 197.01.01.01.01.01.01.01.01.01.01.01.01.01.203.01.01.01.01.01.01.01.01.004.07.01.01.2004.07.07.007.007.01.

③ From 1996 to 2005, the officially assessed individual land price of the instant land was as shown below. However, there was no particular difference between 1997 and 1998, the land category of the instant land was changed from 'building site' to 'miscellaneous land'.

④ According to the decision of the decision of the officially assessed individual land price as of January 1, 2003, 2004, 01.01, and 204.07 as to the land of this case, the land category of this case did not cause a rise in the standard individual construction price as of January 1, 2004.

At the time of determining the officially assessed individual land price as of October 01, 2003, the comparative standard was 00,000 square meters, which is the land category of ○○○-165 square meters, Nam-gu, Busan, which is the land category of 1.65 square meters, and the land and land category of this case, which is the land category of miscellaneous land, did not vary depending on the difference of land category. However, the land price of this case was determined as 1860,000 won (1 square meters) based on the comparative standard publicly assessed individual land price as of 1.98,000 won (1 square meters) and the total price distribution rate was determined as 1.866,00 won (1.962,00 won).

(b) At the time of determining the officially assessed individual land price as of 01.01.01.204, the comparison standard land price was determined as 0,000,000,000,000,000,000,000,000,000,000,000 won as of 3.2,00,000,000,000,000,000,000 won as of 1.12,000,000,000,000,000,000,000,000,000,000 won as of 3.2,00,000,000,000 won as of Compared Standard Land Price as of 20,000,000 won as of 3.3 million,00,000,00 won of the land of this case as of Compared Standard Land Price.

In the time of determining the officially assessed individual land price as of 2004.07.01, the land category of the instant land was changed to 'building site', but at the time of determining the officially assessed individual land price as of 2004.01.01., it was judged that there was no difference in land category as at the time of determining the officially assessed individual land price as of 2004.01. The remaining characteristics of land were assessed as at the time of determining the officially assessed individual land price as of 2004.01.01., the total price distribution rate was set to 1.108, and the land price of the instant land was also identical to 3.3 million won. However, based on the land price fluctuation rate, the officially assessed individual land price of the instant land was determined as at 3.3 million won (/m2.

⑤ On January 01, 2004, the head of the Nam-gu Busan Metropolitan Government responded to the Plaintiff’s civil petition on the ground of the increase in the officially assessed individual land price as of the instant land in order to maintain a balance with neighboring land prices in calculating the officially assessed individual land price.

6. In calculating the unit price of the instant land according to the Defendant’s request for calculation of the unit price of the land, the Korea Appraisal Board added an opinion to the effect that the price difference does not occur due to the change of the land category from the land category to the land category as a result of the change of the land category from the land category to the land category, since the land category was the land category entered in the public record in calculating the unit price of the instant land on January 01,

3) Therefore, although the land category was changed due to the change of usage of the instant land due to the cadastral law, it cannot be said that there was a special circumstance, which is deemed unreasonable to regard the officially assessed individual land price prior to the change of land category as the basic data for calculating the officially assessed individual land price, due to the change of usage of the instant land. Thus, the instant land does not constitute “land with no publicly announced individual land price” under the proviso of Article 99(1)1(a) of the Act and Article 164(1)3 of the Enforcement Decree. Therefore, the Defendant’s disposition of this case, which was otherwise reported, is unlawful.

3. Conclusion

If so, the plaintiffs' claims are justified, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the disposition of this case is revoked, and it is so decided as per Disposition.