[1] The base point of time to determine whether there are grounds for exclusion from idle land in the land excess profit tax for the scheduled period of determination

[2] Whether the amended provisions, etc. pursuant to the Constitutional Court's ruling of inconsistency with the Constitution as to the former Land Excess Profit Tax Act are retroactively applied (affirmative)

[1] In the case of land excess profit tax for the scheduled period of determination, the standard time to determine whether there is a reason to exclude the idle land from the idle land is terminated.

[2] On July 29, 1994, the Constitutional Court rendered a decision that the former Land Excess Profit Tax Act does not conform with the Constitution in the case of 92HunBa49,52 (merged). Accordingly, the National Assembly revised the tax rate clause (Article 12 of the Act) that is deemed unconstitutional in the above decision of inconsistency with the Constitution by Act No. 4807, Dec. 22, 1994, and newly established a provision that requires the deduction of 2 million won from the land excess profit during the pertinent taxable period when calculating the tax base (Article 11-2 of the Act), and the above amended provision shall apply retroactively to the pertinent case, as in the pertinent case.

[1] Article 21(2) of the former Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993); Article 8(1)5(a) of the Land Excess Profit Tax Act; Article 12(2)2 and 4 of the Enforcement Decree of the Land Excess Profit Tax Act / [2] Article 107(1) of the Constitution of the Republic of Korea; Article 47(2) of the Constitutional Court Act; Article 12 of the Land Excess Profit Tax Act; Article 11-2 of the Land Excess Profit Tax Act

[1] Supreme Court Decision 93Nu11012 delivered on May 10, 1994 (Gong1994Sang, 1730) / [2] Constitutional Court Decision 92HunBa49 and 52 delivered on July 29, 1994 (No. 12792Sang, 36), Supreme Court Decision 94Da20402 delivered on July 28, 1995 (Gong1995Ha, 2963), Supreme Court Decision 92Nu18122 delivered on November 10, 195 (Gong195Ha, 3945), Supreme Court Decision 93Nu1648 delivered on November 10, 1995 (Gong195Ha, 195Ha, 3947) 196Nu194638 delivered on September 16, 196 (Gong1947 delivered on September 16, 1996)

Plaintiff (Attorney Kim Young-chul, Counsel for the plaintiff-appellant)

The Director of Incheon Tax Office

Seoul High Court Decision 94Gu4051 delivered on May 25, 1994

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

1. We examine the Plaintiff’s attorney’s grounds of appeal.

No. 2 of the Enforcement Decree of the Land Excess Profit Tax Act provides for the scope of farmland excluded from idle land according to delegation of the proviso of Article 8 (1) 5 (a) of the Land Excess Profit Tax Act, for reasons as alleged above, and such farmland constitutes farmland under Article 12 (2) 2 and 4 of the Enforcement Decree of the Land Excess Profit Tax Act, and it should be excluded from idle land. Article 12 (2) of the Enforcement Decree of the above Act provides for "farmland for which 5 years have not elapsed from the date of farming if the owner of the farmland has cultivated his farmland continuously for 2 years or longer retroactively from the date of farming." Article 12 (2) of the above Enforcement Decree provides for "farmland for which 9 years have not passed since the date of farming, 10 years have passed since the date of farming, 2 years have passed since the date of farming, 3 years have passed since the date of farming, 10 years have passed since the date of expiration, 19 years have passed since the date of the above determination, 9 years have passed since the owner of the above farmland is no longer than 9.

Therefore, the conclusion of the court below that the farmland in this case cannot be considered as farmland excluded from idle land is just, and there is no violation of the rules of evidence or misapprehension of the legal principles, such as theory of lawsuit, and there is no reason to discuss

2. However, the Constitutional Court decided on July 29, 1994 that the former Land Excess Profit Tax Act does not conform with the Constitution in the case of 92Hun-Ba49, 52 (merged). Accordingly, the National Assembly revised the tax rate clause (Article 12 of the Act) which was pointed out to be unconstitutional in the above decision of inconsistency with the Constitution by Act No. 4807 on December 22, 1994. When calculating the tax base, the provision that deducts KRW 2 million from the land excess profit during the pertinent taxable period is newly established (Article 11-2 of the Act), and the above amended provision shall be applied retroactively to this case as in the corresponding case. Accordingly, the judgment of the court below becomes impossible to maintain as it differs from the applicable Acts and subordinate statutes on the tax base and tax rate.

3. Therefore, the judgment of the court below is reversed ex officio, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-tae (Presiding Justice)