[1] Whether illegality of the officially announced value of land selected as the reference land can be contested in a tax lawsuit (negative)

[2] Whether the land excess profit tax imposed on the land which is the reference land violates the principle of taxation equity solely on the ground that the land excess profit tax is larger than the tax amount on the adjacent land (negative)

[3] Whether Article 19(1) of the former Land Excess Profit Tax Act is applicable to the scope of retroactive application of the Land Excess Profit Tax Act as amended by the Constitutional Court’s ruling of inconsistency with the Constitution and the additional tax on negligent tax returns (negative)

[1] As to the officially announced land price of land selected as the reference land, the illegality of the determination of the officially announced land price can only be asserted against the disposition agency through the procedure of objection under Article 8 (1) of the Public Notice of Values and Appraisal of Lands, etc. Act (amended by Act No. 5108 of Dec. 29, 1995) and without following such procedure, the determination of the officially announced land price shall not be asserted.

[2] When the tax authority determines that the reference land is subject to taxation of the land excess profit tax and calculates the amount of the tax, it is only possible to apply the officially announced land price as stipulated in the Public Notice of Values and Appraisal of Lands, etc. Act as the standard market price of the land, and does not have the discretionary power to increase or decrease the officially announced land price. Thus, in calculating the land excess profit tax, it cannot be deemed unlawful merely because the tax amount applied the officially announced land price as it is in the calculation of the land excess profit tax, and even if the tax amount was determined as determined by the relevant laws

[3] Article 19(1) of the former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994) (amended by Act No. 4807 of Dec. 22, 1994) was amended by the Constitutional Court to remove or improve unconstitutional elements in accordance with the Constitutional Court's decision of inconsistency with the Constitution (amended by Act No. 92HunBa49, 52 of Jul. 29, 1994). The amended provisions of all statutes and the Enforcement Rules of the same Act apply to the pertinent case, etc. so long as they are not applied disadvantageous to taxpayers, so long as it is evident that Article 19(1) of the former Land Excess Profit Tax Act

[1] Articles 2 subparag. 1 and 8(1) of the former Public Notice of Values and Appraisal of Lands, etc. Act (amended by Act No. 5108 of Dec. 29, 1995); Articles 8(4)1 and 11(1) of the former Land Excess Acquisition Tax Act (amended by Act No. 4807 of Dec. 22, 1994) / [2] Article 18(1) of the Framework Act on National Taxes; Articles 8(4)1 and 11(1) of the former Land Excess Acquisition Tax Act (amended by Act No. 4807 of Dec. 22, 1994) / [3] Article 19(1) of the former Land Excess Acquisition Tax Act (amended by Act No. 4807 of Dec. 22, 1994)

[1] Supreme Court Decision 94Nu5083 delivered on December 13, 1994 (Gong1995Sang, 511), Supreme Court Decision 94Nu12920 delivered on March 28, 1995 (Gong1995Sang, 1762), Supreme Court Decision 93Nu16468 delivered on November 10, 1995 (Gong1995Ha, 3947), Supreme Court Decision 96Nu1025 delivered on February 28, 1997 (Gong1997Sang, 97Sang, 92Hun-Ba49 delivered on July 29, 199, 197 (Gong507Hun-Ba, 52 delivered on September 16, 194), Supreme Court Decision 97Nu19639 delivered on June 196, 194 (Gong505 delivered on September 196, 196)

Telecommunications-type

Head of Ansan Tax Office

Ansan-si

Seoul High Court Decision 94Gu2257 delivered on May 3, 1996

Of the part against the plaintiff in the judgment of the court below, the part of the additional tax disposition is reversed, and the part of the tax disposition is revoked. The remaining grounds of appeal by the plaintiff are dismissed. The total expenses of the lawsuit are ten equal parts and eight equal parts are assessed against the plaintiff and

We examine the grounds of appeal.

1. On the first ground for appeal

With respect to the officially announced land price of the land selected as a reference land, the illegality of the determination of the officially announced land price can only be asserted against the disposition agency through the procedure of objection under Article 8 (1) of the Public Notice of Values and Appraisal of Lands, etc. Act (amended by Act No. 5108 of Dec. 29, 1995; hereinafter the same shall apply) and without taking such procedure, it cannot be asserted as to the illegality of the determination of the officially announced land price in a tax lawsuit (see Supreme Court Decision 93Nu1648, Nov. 10, 1995). In addition, in calculating the amount of tax, the tax authority determines that the land price of this case, which is a reference land, is subject to the assessment of the officially announced land price under the Public Notice of Values and Appraisal of Lands, etc. of Lands, etc. Act (amended by Act No. 5108, Dec. 29, 195; hereinafter referred to as the "Public Notice of Values and Appraisal of Lands Act"), and thus, it cannot be deemed unlawful.

In the same purport, the court below rejected the Plaintiff’s assertion that the calculation of the tax amount without increasing or decreasing the officially announced price of the land in this case was in violation of the principle of tax equity, etc. although it was determined excessively in comparison with the individual land price of the adjacent land. In light of the records and relevant statutes, the court below’s determination is just and acceptable, and there is no error in the misapprehension of legal principles as to the principle of tax equity or the omission of judgment. There is no reason to discuss

2. On the second ground for appeal

According to the reasoning of the judgment of the court below, the court below determined that the provision of the Land Excess Gains Tax Act newly established or amended by Act No. 4807, Dec. 22, 1992 pursuant to the Constitutional Court Decision 92HunBa49, 52 (merged) on July 29, 1994 should be applied retroactively to the tax amount to be paid by the plaintiff, and the amount equivalent to 10/100 of the tax amount to be paid by applying Article 19(1) of the former Land Tax Act, which was deleted at the time of the above amendment, should be imposed as additional tax for negligent tax returns.

However, Article 19(1) of the former Local Tax Act was amended in order to eliminate or improve unconstitutional elements in accordance with the above decision of inconsistency with the Constitution, and all of the amended laws and regulations and regulations as well as the above shall apply to the pertinent case, etc. unless it is applied disadvantageous to the taxpayer (see, e.g., Supreme Court Decision 93Nu17911, Jan. 26, 1996; 93Nu16475, Mar. 12, 1996). Since Article 19(1) of the former Local Tax Act is not applicable to the extent that it is evident that the taxpayer is disadvantageous to the taxpayer, the above decision of the court below which recognized the application of the above provision shall result in the application of the law on additional tax, and it shall not be exempted from the reversal because it is clear that the decision affected the conclusion of the judgment.

3. Accordingly, the part of the judgment of the court below against the plaintiff is reversed, and as to this part, it is obvious that the land excess profit tax to be borne by the plaintiff is KRW 9,822,624 except for the additional tax on negligent tax returns as calculated in the reasoning of the judgment below. As such, the portion of the additional tax exceeding the above recognized amount is revoked in 10,804,884 won, which is recognized by the court below among the tax disposition of this case, and the remaining appeal by the plaintiff is dismissed as it is without merit, and it is so decided as per Disposition by the assent of all participating Justices by applying Articles 96, 89, and 92 of the Civil Procedure Act with respect to the bearing of the total cost of lawsuit.

Justices Kim Jong-sik (Presiding Justice)