In determining whether a corporation's land for non-business use under the grace period under Article 84-4 (4) 10 of the former Enforcement Decree of the Local Tax Act, whether the grace period may be extended by excluding the period during which the land could not be used due to restrictions on construction permission (negative)

Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14878 of Dec. 30, 1995) provides that "land for non-business use of a corporation under Article 112 (2) of the Act refers to the land falling under any of the following subparagraphs." Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act provides that general cases not falling under subparagraph 1 (a) through (d) of the same paragraph refer to land which is not used directly for its unique business within one year from the date of its acquisition without justifiable reasons. Article 84-4 (4) of the same Act provides that "land falling under any of the following subparagraphs shall not be deemed land for non-business use of a corporation, notwithstanding the provisions of paragraphs (1) through (3) of the same Article," and Article 84-4 (1) of the same Act provides that "land for which four years have not elapsed since the date of its acquisition for housing construction, its grace period has not been extended by 10 years since the date of construction permission for non-business use.

Article 112(2) of the former Local Tax Act (amended by Act No. 5615 of Dec. 31, 1998); Article 84-4(1) and (4)10 (current deletion) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14878 of Dec. 30, 1995) (amended by Presidential Decree No. 14878 of Dec. 30, 1995)

Supreme Court Decision 97Nu5121 Decided November 27, 1998 (Gong1999Sang, 73) Supreme Court Decision 97Nu11843 Decided July 9, 199 (Gong1999Ha, 1658) Supreme Court Decision 98Du11205 Decided February 8, 200 (Gong200Sang, 630)

Transfer (Law Firm International Law Office, Attorneys Kim Dai-ju et al., Counsel for the defendant-appellant)

Head of Seo-gu Busan Metropolitan Government (Law Firm Sejong, Attorney Jeong Young-young, Counsel for the defendant-appellant)

Busan High Court Decision 97Gu2313 delivered on January 21, 1999

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court. The plaintiff's appeal is dismissed.

1. As to the defendant's appeal

According to the reasoning of the judgment below, the court below acknowledged that the plaintiff acquired the land of this case as a corporation for the purpose of housing construction business on May 6, 1991, and established a plan to construct and sell the main complex building on the ground after obtaining a construction permit on January 17, 1995, and transferred the land of this case to the non-party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party party to the construction work on May 13, 1995, and the construction permit restriction measure was taken by the Minister of Construction and Transportation from May 6, 1991 to December 31, 1992. Thus, the court below determined that the plaintiff's land of this case can not be used for the period between May 6, 1991 to December 15, 197.

Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14878 of Dec. 30, 1995; hereinafter referred to as the "former Enforcement Decree") provides that "land for non-business use under Article 112 (2) of the Act refers to land falling under any of the following subparagraphs." Article 84-4 (1) 1 (a) through (d) of the former Enforcement Decree of the Local Tax Act provides that general cases do not fall under subparagraphs 1 (e) through (d) of the same paragraph, a corporation's land shall not be used directly for its unique business without justifiable reasons within one year from the date of its acquisition." Paragraph (4) of the same Article provides that "land falling under any of the following subparagraphs shall not be deemed non-business use land of a corporation, notwithstanding the provisions of paragraphs (1) through (3) of the same Article, for which 4 years have not elapsed since the date of its acquisition for the purpose of constructing, supplying, or leasing a house, and it shall be used within 80 years after the grace period of the above construction permit.

Even according to the facts established by the court below, since the plaintiff started the new construction of the main complex building of this case on October 13, 1995 after four years from the date of the acquisition of the grace period for the land for housing ( May 6, 1991) and four years from the date of the acquisition of the land for housing (the date of the grace period for the land for housing). Thus, the

Nevertheless, the judgment of the court below which judged otherwise is erroneous in the misunderstanding of legal principles as to the grace period for non-business land, which affected the conclusion of the judgment.

2. Plaintiff’s appeal is examined (to the extent of supplement in case of grounds of appeal after the expiration of the submission period).

A. Ground of appeal Nos. 1 and 3

As seen earlier, since the land for residential use cannot be deemed land for non-business use, the Plaintiff’s assertion in the grounds of appeal that the land for residential use corresponds to the part of the building other than residential use (hereinafter referred to as “non-residential land”) among the instant land on the premise that the land for residential use does not constitute the land for non-business use cannot be seen as the land for non-business use, is without merit.

B. Ground of appeal No. 2

Upon examining the reasoning of the judgment below in light of the records, the court below is just in holding that the plaintiff's sale of non-housing land only after the expiration of the grace period cannot be viewed as a justifiable ground, and there is no error in the misapprehension of legal principles as to justifiable grounds as otherwise alleged in the ground of appeal

C. Ground of appeal No. 4

According to the reasoning of the judgment of the court below, the court below determined that non-housing land was not used for its own purpose within one year, which is the grace period, and thus constitutes non-business land. In so doing, the court below erred in the misapprehension of the purport of rejecting the plaintiff's assertion that the defendant's disposition of this case was unlawful before the four-year grace period expires, and there is no illegality in the omission of judgment, as otherwise alleged in the ground of appeal.

3. Therefore, the part of the judgment of the court below against the defendant is reversed and remanded to the court below. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)