Whether Article 20(2)3 of the Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 13965, Aug. 27, 1993) applies retroactively to the determination of idle land excluded from the special deduction for long-term holding of capital gains tax (affirmative)

According to the proviso of Article 46-3 of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 14467 of Dec. 31, 1994), “land which does not fall under idle land, etc. as of the date of transfer” shall be subject to the special long-term holding deduction of capital gains tax even if it falls under the land under the provisions of the main sentence of Article 8 of the same Act, and Article 8(1) of the former Land Excess Profit Tax Act (amended by the Presidential Decree No. 4807 of Dec. 22, 1994) provides that “the land owned by an individual and is subject to taxation of capital gains tax shall be the land falling under any of the following subparagraphs” and subparagraph 13 provides that “the land which is used for rent under subparagraph 1 through 4 shall be excluded from the land owned by the owner of the building attached to the building, and subparagraph 2 of Article 9 of the Enforcement Decree of the former Land Excess Profit Tax Act (amended by the Presidential Decree No. 1481 of Aug. 27, 1993) shall be applied to “the land not falling under subparagraphs 1 through 20. 3. 9.

Article 23 (2) 2 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) (see current Article 95 (2) of the Income Tax Act), Article 46-3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994), Article 8 (1) 13 of the former Land Excess Gains Tax Act (amended by Act No. 4807 of Dec. 22, 1994), Article 20 (2) 3 of the former Enforcement Decree of the Land Excess Gains Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994), and Article 20 (2) 2 of the Addenda of the former Land Excess Gains Tax Act

Supreme Court Decision 95Nu17281 delivered on March 12, 1996 (Gong1996Sang, 1299) Supreme Court Decision 93Nu6140 delivered on May 10, 1996 (Gong1996Ha, 1901) Supreme Court Decision 96Nu2552 delivered on December 10, 1996 (Gong197Sang, 421)

[Judgment of the court below]

Daejeon Head of the tax office

Daejeon High Court Decision 96Gu2826 delivered on May 16, 1997

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

We examine the grounds of appeal.

1. On the first ground for appeal

The term "land prescribed by Presidential Decree" in the main sentence of Article 46-3 of the former Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994; hereinafter the same shall apply) provides for the land which is excluded from the special long-term holding deduction of capital gains tax by delegation of Article 23 (2) of the former Income Tax Act (amended by Act No. 4803 of Dec. 2, 1994); the term "land prescribed by Presidential Decree" in Article 23 (2) 2 of the former Enforcement Decree of the Income Tax Act (including those on which an unauthorized building prescribed by Ordinance of the Ministry of Home Affairs is built) and the land attached to the building, which is calculated by multiplying the floor area of the building by the ratio under Article 15 (9) of the former Enforcement Decree of the Income Tax Act (the total floor area of the building in question is smaller than the size calculated by multiplying the ratio under Article 15 (9) of the former Enforcement Decree of the Income Tax Act; the term "building or building" in excess of Article 1506 of the former Enforcement Decree.

In the same purport, the court below is just to determine the scope of land subject to special deduction for long-term holding of capital gains tax on the ground that various facilities for driving training listed in subparagraph 2 of Article 75-2 of the former Enforcement Decree of the Local Tax Act do not fall under the scope of land subject to special deduction for long-term holding of capital gains tax, and there is no error in the misapprehension of legal principles as to the definition of structure under Article 46-3 and Article 15(9)1 of the former Enforcement Decree of the Local Tax Act, Article 18-2 of the Enforcement Decree

2. On the second ground for appeal

According to the proviso of Article 46-3 of the former Enforcement Decree of the Income Tax Act, the term “land which does not fall under idle land, etc. pursuant to the provisions of Article 8 of the Land Excess Profit Tax Act as of the date of transfer” shall be subject to the long-term possession special deduction of capital gains tax even if it falls under the land pursuant to the provisions of the main sentence of the same Article, and Article 8(1) of the former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994) provides that “the land owned by an individual which is subject to the taxation of capital gains tax shall be the land falling under any of the following subparagraphs, and it shall be the land (excluding the land prescribed by the Presidential Decree) used for rent under subparagraph 13: Provided, That the land which is leased incidental to a building and does not fall under the provisions of subparagraphs 1 through 4, and Article 20(2)3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13965 of Aug. 27, 19993) provides that “the above land owner shall be excluded from the above land. 98.

Nevertheless, the court below held that Article 2 (2) of the Addenda to the above Enforcement Decree of the Act applies only to the land excess profit tax law that is its mother corporation and that the above provision of the Enforcement Decree of the above Act does not apply retroactively to the transfer income tax. The court below erred by misapprehending the legal principles of Article 20 (2) 3 of the Enforcement Decree of the Land Excess profit Tax Act and Article 20 (2) 2 of the Addenda of the Enforcement Decree of the above Act as amended by Presidential Decree No. 13965 of August 27

However, the land excluded from the land used for lease under Article 20 (2) 3 of the Enforcement Decree of the Land Excess Profit Tax Act amended by Presidential Decree No. 13965, Aug. 27, 1993; the land subject to the special long-term holding deduction of capital gains tax refers only to the "relevant land" where the owner of the land and the owner of the building are different; according to the records, the land with the above ground buildings as of December 31, 1989, among the land subject to the transfer income tax as of December 31, 1989, is limited to the Daejeon Seo-gu ( Address omitted) 1,030 square meters; while the Defendant imposed capital gains tax by recognizing the special long-term holding deduction of land exceeding the above area, thereby including the entire land ( Address omitted), which is subject to the special long-term holding deduction of capital gains tax, the lower court’s determination that the Defendant’s disposition of capital gains tax of this case is justifiable as a result of the conclusion of the judgment below, and is not affected by the judgment.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)