Whether a building, which had been constructed with legitimate permission or after filing a report, but has undergone a pre-use inspection after the end of taxation due to delay in the procedure, is included in an unauthorized building under Article 11(3) of the Enforcement Decree of the Land Excess Profit Tax Act (negative)

Under the former part of Article 10(1) of the Enforcement Decree of the Land Excess Profit Tax Act, the land annexed to a building without permission, among land owned by a private person, is subject to corrective measures, such as removal without legal procedures under the Building Act, and even in this case, if a building constructed without permission, opens a path excluded from idle land, etc., such as land annexed to the building, it would result in aiding and abetting and promoting illegal construction, and it cannot be expected to promote utilization of land annexed to the existing unauthorized building (in cases of land annexed to a house, it does not go against the principle of statutory construction and usage inspection, taking into account that the residence is a basic base of living, and thus, it does not constitute “unauthorized housing” under the former part of Article 10(1) of the Enforcement Decree of the Land Excess Profit Tax Act and the Enforcement Decree of the same Act, which is subject to the imposition of land excess profit tax, and thus, it is difficult to obtain permission or use inspection without permission from the taxpayer in light of equity in taxation and purpose of the relevant provisions, and thus, it is difficult to view that property rights of a taxpayer are not subject to taxation or temporary use inspection.

Article 8 (1) 4 (c) of the Land Excess Profit Tax Act, Article 11 (3) of the Enforcement Decree of the Land Excess Profit Tax Act

Plaintiff

The Director of Gangnam District Office

Seoul High Court Decision 92Gu22468 delivered on February 10, 1993

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

The grounds of appeal by the defendant litigant are examined.

1. Article 8 (1) 4 (c) of the Land Excess Profit Tax Act (amended by the Presidential Decree No. 13965, Aug. 27, 1993) provides that "land annexed to an unauthorized building as prescribed by the Presidential Decree" among land owned by an individual shall be used as idle land, and Article 8 (2) 1 through 4 of the Act provides that "land annexed to an unauthorized building as prescribed by the Presidential Decree" shall apply only where a building is constructed as of the end of the taxable period under the conditions as prescribed by the Presidential Decree, and Article 11 (3) of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 13965, Aug. 27, 1993; this provision shall also apply retroactively to taxation scheduled for the year 190", and Article 8 (2) of the Addenda of the same Act provides that "any building which is not permitted or reported under the Building Act shall be permitted or reported under the latter part of the same Act."

As above, Article 10(1) of the Decree provides that the land annexed to an unauthorized building among the land owned by a private building on which the general building is located as idle land, which is subject to the land excess profit tax, is merely subject to corrective measures, such as removal, without being protected by the law, and even in this case, if the building constructed, disregards legitimate procedures under the related Acts and subordinate statutes, such as the Building Act, and opens a path excluded from idle land, etc., it would result in aiding and abetting and promoting illegal construction, and it is not possible to expect utilization of the land annexed to the existing unauthorized building. However, in the case of land annexed to a house, it is difficult to expect utilization of the land annexed to the existing unauthorized building (in the case of land annexed to a house, it is difficult to say that there is no reason to exclude the land from the land excess profit tax, taking into account that the land is the basic base of living.

In interpreting and applying this Act and the Enforcement Decree of the Tax Act, the principle of tax-related Acts interpretation that taxpayers' property rights should not be unfairly infringed in light of the equity of taxation and the purpose of the pertinent provision (Article 18(1) of the Framework Act on National Taxes) and the legitimate procedure under the construction laws and regulations, the determination of idle land subject to land excess profit tax depending on whether the construction has been completed through lawful procedures such as inspection of use or approval for temporary use, etc., should be different depending on the substance and status of the land attached to a building, the construction of which has already been completed (Article 18(1) of the Framework Act on National Taxes). It goes against the principle of taxation on substance over form and current status, and it is against the principle of taxation on real estate and current status, and it is likely that any disadvantage may be inflicted on taxpayers due to lack of legal stability, and construction is conducted after obtaining permission required by the relevant Acts and subordinate statutes, such as the Building Act, among the buildings stipulated in the latter part of Article 11(3) of the Decree, but at the end of the taxable period without obtaining a corrective order or temporary use approval or temporary use approval.

2. According to the reasoning of the judgment below, the court below held that on October 12, 1988, the plaintiff was issued a certificate of completion inspection on September 20, 1991 to the wind that the chief of the competent fire station issued a notice of completion of fire-fighting facilities construction on September 20, 191, and therefore, on the land in this case, the building in this case does not constitute an unauthorized building as provided in the latter part of Article 11(3) of the Decree, since the building in this case does not constitute a building without permission under the latter part of Article 11(3) of the Decree, since the plaintiff was issued a certificate of completion inspection on September 20, 191 by the chief of the competent fire station.

The court below's decision that the provision of the latter part of Article 11 (3) of the Decree is null and void because it goes beyond the bounds of the mother law, is not acceptable as it is, contrary to the opinion of the party members on the interpretation of the latter part of Article 11 (3) of the Decree. However, the conclusion that the land of this case does not constitute land annexed to an unauthorized building is just, and there is no reason to conclude otherwise.

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.

Justices Cho Chang-tae (Presiding Justice)