Whether the amended provisions of the Enforcement Decree of the Land Excess Profit Tax Act apply retroactively to the portion of taxable period from January 1, 1990 to December 31, 1992, which was first reported after the enforcement of the above Enforcement Decree (affirmative)

Article 23 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 13198, Dec. 31, 1990) provides that where a person acquires a parcel of land (limited to a parcel of land on which a building is not built on the ground) for the purpose of constructing a new building under subparagraph 3, the inevitable reason and period for which the person does not regard as idle land, etc. pursuant to Article 8 (3) of the former Land Excess Profit Tax Act (amended by Act No. 4561, Jun. 1, 1993) shall be as follows, and where a person acquires a parcel of land (limited to a parcel of land on which a building is not built on the ground) for the first time from the 19th anniversary of the acquisition date, Article 23 subparagraph 3 of the above Enforcement Decree shall be newly established on December 31, 199; Article 23 (4) of the former Enforcement Decree shall be deemed to apply from the 19th anniversary of the acquisition date to the 19th anniversary of the above provision.

Articles 6 and 15(1) of the former Land Excess Profits Tax Act (amended by Act No. 4561 of Jun. 11, 1993); Article 23 subparag. 3 of the former Enforcement Decree of the Land Excess Profits Tax Act (amended by Presidential Decree No. 1365 of May 30, 192); Article 23 subparag. 2 and Paragraph (4) of the Addenda (amended by Presidential Decree No. 1365 of Dec. 31, 1990)

Supreme Court Decision 93Nu8245 delivered on November 8, 1994, Supreme Court Decision 93Nu4540 Delivered on November 25, 1994, Supreme Court Decision 95Nu1002 Delivered on September 5, 1995

Plaintiff 1 and one other (Law Firm Dong, Attorneys Park Dong-dong et al., Counsel for the plaintiff-appellant)

Head of Seocho Tax Office and one other

Seoul High Court Decision 94Gu36997 delivered on October 24, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

Article 8(3) of the former Land Excess Profit Tax Act (amended by Act No. 4561 of Jun. 11, 1993; hereinafter the same shall apply) provides that land falling under idle land due to the provisions of the Acts and subordinate statutes after its acquisition, loss of a ground building, collapse, or other inevitable reasons prescribed by the Presidential Decree shall not be deemed idle land, etc. for the period prescribed by the Presidential Decree, notwithstanding the provisions of paragraph (1). Meanwhile, Article 23 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13198 of Dec. 31, 1990) provides that the acquisition date of the land for the first time from 190 to 190, which is the first time after the lapse of 190, shall be deemed to have been 10 years from the date of its acquisition, and Article 8(3) of the former Enforcement Decree of the same Act provides that the latter part of the same Act shall be deemed to have been acquired for the purpose of constructing a new building under subparagraph 3 (limited to the proviso of Article 19 of the former Enforcement Decree.

However, in determining the plaintiffs' assertion that the land of this case should be judged whether it constitutes idle land under the above provision of amendment, the land of this case was transferred on May 8, 1990, and at that time before the above provision of amendment clause 4 is enforced, so the plaintiffs' assertion premised on this provision is without merit, and even if so, on December 31, 1990, for which the liability for payment of capital gains tax for the year 1990 is established, even after the lapse of one year under Article 23 subparagraph 3 of the former Enforcement Decree of the Land and Transport Tax Act, which was already excluded from idle land, the land of this case is subject to the land excess profit tax by itself, so it is not justified.

However, in light of the above legal principles, as long as the plaintiffs proved that they acquired the land of this case for the purpose of construction, the land of this case which was acquired on March 23, 1976 cannot be deemed as the land corresponding to idle land under the former Land Tax Act at the time of transfer of the land. Thus, the court below should have deliberated on the purpose of acquiring the land of this case and determine whether the land constitutes idle land. However, the court below erred in the law applicable to the transfer of this case where the court below rejected the plaintiffs' assertion without reaching this point, and there is an error of law that the court below rejected the plaintiff's assertion and the statement that

Therefore, without examining other grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)