[1] In a case where a land transaction permit is obtained after settling the balance and receiving delivery of the land after concluding a sales contract, the time when the period of the grace period of the provision on the non-deductible of the interest paid to a corporation holding real estate for non-business use under Article 18(3)1 of the former Enforcement Rule of the Corporate Tax Act is the starting date of calculating the period of grace

[2] Whether the existence of justifiable grounds constitutes an exception to a corporation's real estate for non-business use under Article 18 (3) of the former Enforcement Rule of the Corporate Tax Act (negative)

[1] If the judicial effect of a contract without permission for land purchase and sale has come to a situation in which it can be actually used for business after settling any balance under the dynamic invalidity of the contract, the time shall be deemed to be the time of acquisition of real estate, which is the starting date of calculating the grace period for the provision on non-deductible of interest paid to a corporation holding non-business real estate under Article 18 (3) 1 of the former Enforcement Decree of the Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1968 of March 12, 194).

[2] In full view of the provisions of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998), the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998), and the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1968 of Mar. 12, 1994), if a real estate falls under any subparagraph of Article 18(3) of the Enforcement Rule of the same Act, it shall be deemed that the real estate falls under any subparagraph of Article 18-3 of the same Act. Even if the real estate is used directly for a corporation's business, if it falls under any subparagraph of Article 18(3) of the Enforcement Rule of the same Act, unless there is any exception under paragraph (4) of the same Act, the real estate is determined as non-business real estate, and therefore the existence of justifiable cause shall not necessarily affect

[1] Article 18-3 (1) 1 (see current Article 27 subparagraph 1) of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998); Article 43-2 (1) 1 and (3) (see current Article 49 (1) 1 (a) and (2) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998); Article 18 (3) 1 (see current Article 26) of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1968 of Mar. 12, 1994); Article 18 (1) 1 (see current Article 26 of the Corporate Tax Act) of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 199); Article 18-3 (1) 1 and 4 (see current Article 198 (1) of the former Enforcement Decree of the Corporate Tax Act)

[1] [2] Supreme Court Decision 98Du1482 delivered on May 25, 1999 (Gong199Ha, 1299) / [1] Supreme Court Decision 94Nu3889 delivered on October 14, 1994 (Gong1994, 3017) / [2] Supreme Court Decision 93Nu13469 delivered on November 26, 1993 (Gong194, 222), Supreme Court Decision 96Nu3821 delivered on July 8, 1997 (Gong197Ha, 2417), Supreme Court Decision 97Nu1812 delivered on December 23, 198 (Gong199, 2719) / [30Nu196399 delivered on April 19, 199)

Daelim Industries Co., Ltd. (Attorneys Ha Chang-soo et al., Counsel for the plaintiff-appellant)

The director of the tax office

Seoul High Court Decision 95Gu37997 delivered on April 24, 1997

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

The grounds of appeal are examined.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below determined that even if the plaintiff company engaged in the manufacture and sale business of the bean enterprise purchased 17 parcels of land within the land transaction permission area from May 7, 1990 to February 12, 192, the non-party 1, etc. settled the balance and received delivery of the land at that time, the land transaction permission was obtained between March 26, 1993 and March 28, 1994 and completed the registration of ownership transfer between May 18, 1993 and May 11, 194, but it did not directly use the land of this case for business purposes at the same time with the permission of land transaction transaction, the court below obtained the land transaction permission of this case from the non-party 1, etc., and obtained the permission of this case to the non-party 1, etc., and obtained the permission of this case to the non-party 1, 1993, "after the expiration of the period of sale and sale contract of this case from the date of this case."

If the judicial effect of the contract has come to a situation where the judicial effect of the contract is constantly null and void due to the transaction permission, the time shall be deemed to be the time of acquisition of real estate under the provisions of the above tax law. Therefore, in light of the above legal principles, the decision of the court below is just in its conclusion in light of the above legal principles, and there is no error in the misapprehension of legal principles as to the time of acquisition of real estate, which serves as the starting point of the grace period in the determination of non-business property of the corporation. The ground of appeal on this point is dismissed.

2. On the second, third, and fourth grounds

Article 18-3 of the Act (wholly amended by Act No. 5581 of Dec. 28, 1998) stipulates that a corporation's possession of real estate for non-business use shall be one of the conditions under which interest paid on loans shall not be included in the calculation of losses, and the scope of non-business use real estate shall be delegated by the Enforcement Decree. Article 43-2 of the Act (wholly amended by Presidential Decree No. 15970 of Dec. 31, 1998) provides general standards for the scope of non-business use real estate and delegates the specific contents to the Ministry of Finance and Economy. Accordingly, Article 18 (3) of the Enforcement Decree of the Act (wholly amended by Presidential Decree No. 15982 of Dec. 31, 1998) provides that real estate for non-business use under Article 84-4 (1) and (3) of the Act (wholly amended by Presidential Decree No. 15982 of Dec. 31, 198) shall be excluded from the above provision 19-3 of the Act.

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the land of this case should be excluded from non-business real estate because there is a justifiable reason for not using the land of this case directly for non-business purpose, even though it does not fall under the reasons for excluding non-business real estate listed in Article 18 (4) of the Enforcement Rule of the Act. The court below decided that the land of this case constitutes non-business real estate regardless of whether it acquired the land of this case for the purpose of acquiring profits from the increase in land price as provided in Article 18 (3) 1 of the Enforcement Rule of the Act, and the above interpretation of the court below is just in accordance with the above precedents, and the above interpretation of the principle of no taxation without law or the principle of no taxation without law or the principle of no taxation without law as well as the principle of no taxation without law as to property rights and the principle of no delegation of authority cannot be accepted in this case. It does not err in the misapprehension of the judgment below's reasoning for appeal.

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 Jeong Jong-ho (Presiding Justice)