(a) A case recognized as falling under “temporary use of land” under Article 142(1)1 Item 6 of the Enforcement Decree of the Local Tax Act;

(b) Whether subparagraph 5 of Article 78-3 of the Enforcement Rule of the Local Tax Act is invalid;

A. Even if the land, which is a site, is leased to another person for use as a block, manufacturing place, or rental place of timber for construction, it is merely a temporary use of the land as stipulated under Article 142(1)1 Item 6 of the Enforcement Decree of the Local Tax Act, in the event that there is no business tax payment record, the method of use, form, and lease contract is short-term, and the lease period is small-sum compared to the land.

B. Article 78-3 subparag. 5 of the Enforcement Rule of the Local Tax Act provides that even the land for block, manufacturing place, or loading place of goods, etc. to be considered as “temporary use of land” under the Enforcement Decree of the Local Tax Act, if there is a uniform standard for determining the business tax payment performance of the immediately preceding period, it shall be excluded from the vacant land. Thus, this provision does not apply to the restriction on the classification and limit of the land that does not correspond to the vacant land that is not delegated by the Local Tax Act or the Enforcement Decree of the Local Tax Act, and thus,

Article 142 (1) 1 and 6 of the Enforcement Decree of the Local Tax Act, Article 78-3 subparagraph 5 of the Enforcement Rule of the Local Tax Act

[Judgment of the court below]

Attorney Han-dae et al., Counsel for the plaintiff-appellant

Daegu High Court Decision 78Gu43 delivered on April 24, 1979

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal Nos. 1, 2, and 3 are examined.

According to the reasoning of the judgment below, the court below states that "the classification and limit of property subject to property tax such as vacant land pursuant to Articles 188 (1) and 188 (3) of the Local Tax Act shall be prescribed by the Presidential Decree." Article 142 (1) 1 (6) of the Enforcement Decree of the same Act refers to land which has no ground settlement and is actually used as land, factory site, school site, and miscellaneous land in an area determined by the Ordinance of the Ministry of Home Affairs. In this case, temporary facilities which are not used for building, gardening are not considered as ground fixtures, and temporary facilities and other land use of land do not constitute actual use of land. Thus, since the use of land has not yet been used, it is merely public use of land even if the use of land is temporary, it shall not be deemed that the above land is leased to others, as alleged by the plaintiff, and thus, it shall not be deemed that there is no reason for the court below to view that it constitutes a temporary use of the above land under Article 142 (1) 1 (6) of the Enforcement Decree of the Local Tax Act.

In addition, Article 142 (1) 1 (f) (h) of the Enforcement Decree of the Local Tax Act provides that the land stipulated by the Ordinance of the Ministry of Home Affairs shall be excluded from the vacant land of the relevant provision, i.e., the land for a block manufacturing place or a goods loading place, which has business tax payment performance for the immediately preceding period, shall be excluded from the vacant land, pursuant to the above Enforcement Decree of the Local Tax Act, and the above provision provides that the land for a block manufacturing place or goods loading place shall be excluded from the vacant land, and the land for a business tax payment performance for the immediately preceding period shall be excluded from the vacant land, as determined above, if there is a uniform standard for determining the temporary use of the land such as land for a block manufacturing place or goods, etc., which is the land of public land pursuant to the Enforcement Decree of the Local Tax Act, but this provision shall not be deemed to be a provision to increase the classification of the land and the limit of the land that is not public land delegated by the Local Tax Act or the Enforcement Decree of the Local Tax Act. Therefore, the plaintiff's assertion that the above provision is invalid.

In addition, according to the provisions of Article 6 of the Regulations on the Exclusion of Land for Non-business Use (Ordinance of the Ministry of Home Affairs No. 142, Apr. 26, 1974) and Article 78-3 subparagraph 5 (2) of the former Enforcement Rule of the Local Tax Act (Enforcement Rule No. 165, Feb. 21, 1975) enforced in 1975, land with the actual record of tax payment of one or more years of business tax except for the case of tax exemption pursuant to the provisions of the Business Tax Act and other related Acts and subordinate statutes as loading place of goods, etc. shall be excluded from the vacant place. However, in light of the whole purport of arguments in the above statement in subparagraph 3 of the above Article 10 (No. 10), the above non-party 2, the lessee of the above land, received the tax exemption from the above land from May 20, 197 to the date of the above tax exemption for the period of 197 years prior to the date of the tax exemption.

If so, the property tax of this case, which is the property tax for the second term of 1974 and the second term of 1975, is a property tax for the taxable period, the property tax of this case shall not be deemed as a land subject to exclusion by the above provisions unless there is no tax payment for the first term due to the use of the above land in the taxable period.

In light of the records, the above fact-finding or legal judgment of the court below is all justified, and each case of the lawsuit is not appropriate in this case, and therefore, the so-called "temporary use of land" in Article 142 (1) 1 (6) of the Enforcement Decree of the Local Tax Act as well as the so-called "temporary use of land" in Article 142 (1) 1 (6) of the Enforcement Decree of the Local Tax Act, which is an invalid provision without delegation of the Enforcement Decree, is without merit.

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 Ahn Byung-soo (Presiding Justice)