The meaning of "the purpose of constructing a new building" under subparagraph 3 of Article 23 of the Enforcement Decree of the former Land Excess Profit Tax Act.

Article 23 (3) of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 13655 of May 30, 192) provides that "the purpose of new construction of a building" is not to construct a new building if it is necessary to build a new building in the future in light of the legislative intent of the Land Excess Gains Tax Act that intends to suppress idle land, but to specifically prepare a plan and fund to build a new building and to construct a new building within a considerable time, so it is not necessarily interpreted by applying for a building permit or restricting that such purpose is recognized within one year from the date of acquisition of land.

Article 8(3) of the Land Excess Profit Tax Act, Article 23 subparag. 1 of the Enforcement Decree of the same Act, Article 23 subparag. 3 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 13655 of May 30, 192)

Plaintiff 1 et al., Counsel for the defendant-appellant

The Director of the Central Tax Office

Seoul High Court Decision 92Gu31400 delivered on February 23, 1993

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

We examine the grounds of appeal.

(1) According to the reasoning of the lower judgment, the lower court rejected the Plaintiffs’ assertion that the instant land cannot be deemed idle land pursuant to Article 23 subparag. 1 and subparag. 3 of the Enforcement Decree of the Land Excess Profit Tax Act, on the ground that, after the Plaintiffs acquired the instant land on June 27, 1978 and prepared a construction plan for commercial buildings of the size of 1,97 square meters of the 2nd and the 6th and upper floors above on April 190, and requested the designer to design, and brought out some construction materials. However, even if it was impossible to construct a building on the instant land due to the restriction and extension of the construction permission for the adjustment of the supply and demand of construction materials by the construction department, such administrative measures do not constitute the legislation under Article 23 subparag. 1 of the Enforcement Decree of the Land Excess Profit Tax Act, and merely because the Plaintiffs prepared the construction as above, the Plaintiffs cannot be deemed as the person who applied for construction permission under Article 23 subparag. 3 of the Enforcement Decree

(2) Article 23 subparag. 3 of the Enforcement Decree of the Land Excess Profit Tax (amended by Presidential Decree No. 13198, Dec. 31, 190; Presidential Decree No. 13655, May 30, 1992; hereinafter the same shall apply) provides that where a person who applied for construction permission, etc. acquires land for the purpose of constructing a new building, such land shall not be deemed idle land for one year from the date of acquisition, and where a person who applied for construction permission, etc. is prohibited from constructing a new building within one year from the date of acquisition pursuant to Article 44 of the former Building Act, but the construction permission is restricted by administrative guidance for the adjustment of supply and demand of construction materials, the land shall not be deemed idle land for one year from the date of acquisition, for which the period of preparation required for the construction is added to the main sentence of the Act and subordinate statutes, unlike the main sentence allowing the preparation period required for the construction, it shall not be deemed that the period of use restriction under Article 23 subparag. 3 proviso of the former Enforcement Decree does not constitute a new construction permission or a new construction permission. 4.

However, in light of the legislative intent of the Land Excess Profit Tax Act, "for the purpose of constructing a new building" in the main sentence of Article 23 subparagraph 3 of the Enforcement Decree means the intent to build a new building within a reasonable time by preparing a plan and funds to build a new building in the future, not for the future when the circumstances to build a new building exist. Thus, it does not necessarily mean that the court below's rejection of the Plaintiff's assertion that the land of this case is excluded from idle land pursuant to Article 23 subparagraph 3 of the Enforcement Decree of the Enforcement Decree is erroneous by misapprehending the legal principles of Article 23 subparagraph 3 of the Enforcement Decree, which led to failure to complete deliberation as to the existence of the purpose of new construction of a building, within the scope of this issue.

(3) Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Man-man (Presiding Justice)