Whether such idle land constitutes capital gains tax reduction or exemption;

Any disposition imposing capital gains tax that is not subject to capital gains tax reduction or exemption regulations on the premise that the defendant's assertion on whether it falls under idle land is illegal.

The contents of the decision shall be the same as attached.

1. The imposition of capital gains tax of KRW 296,582,330 on May 1, 1994 by the defendant against the plaintiff on May 1, 1994 shall be revoked.

1. Details of the instant disposition

원고가 1990. 8. 31. 그 소유인 ㅇㅇ ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 대 6,147.6㎡ 등 8필지의 토지(이하 이 사건 토지라 한다)를 소외 ㅇㅇ 주식회사에 국민주택건설용지로 양도한 후 구 조세감면규제법(1990. 12. 31. 법률 제4285호로 개정되기 전의 것) 제62조 제1항 의 규정에 의하여 양도소득세의 100분의 50에 대하여 감면신고를 하고 그 나머지의 세액만 납부한 사실, 이에 대하여 피고는, 이 사건 토지는 골프연습장용 토지로서 1989년도의 수입금액이 38,137,800원에 불과하고 토지가액 3,024,054,820원의 7/100에 미치지 못하여 토지초과이득세법에 의한 유휴토지에 해당하므로 구 조세감면규제법 제66조의3 , 그 시행규칙(1991. 1. 12. 재무부령 제1840호로 개정되기 전의 것) 제20조의6 의 규정에 따라 양도소득세의 감면규정이 적용되지 아니한다는 이유로 1994. 5. 1. 원고에 대하여 위 감면 양도세액 296,582,330원을 부과처분한 사실은 당사자 사이에 다툼이 없다.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff's assertion is as follows.

First, Article 6-3 of the Regulation of Tax Reduction and Exemption Act provides that the so-called idle land subject to the land excess profit tax under the Land Excess Profit Tax Act shall be excluded from the reduction or exemption of transfer income tax, but the Land Excess Profit Tax Act has already been ruled unconstitutional by the Constitutional Court, so it cannot be determined as to whether it is idle land or not under the law which is null and void as above. Thus, the disposition of this case premised on the land in this case is unlawful.

Second, in determining whether the idle land is idle land, the calculation of the ratio of the revenue amount (income amount and the ratio of the land value) under Article 20-6 of the Enforcement Rule of the Regulation of Tax Reduction and Exemption Act shall be based on the end of the year immediately preceding the year in which the transfer date of the land in this case belongs, and in calculating the above ratio under Article 8(4) of the Land Excess Gains Tax Act and subparagraph 1 of Article 24 of the Enforcement Decree thereof, the value of the land in this case shall be based on the officially announced value of the individual land. In conclusion, as long as the amount of revenue is 1989 when the amount of revenue is determined as the officially announced value in 1989, it shall be in line with the relevant laws and the legislative intent of the Framework Act on National Taxes. Since the Land Excess Gains Tax Act cannot calculate the officially announced value of the land in this case as of January 1, 1990, it shall not be based on the officially announced value of the land in this case as of December 31, 1989.

Third, the land of this case is land for a simplified golf course pursuant to Article 8(1)12 of the Land Excess Profit Tax Act, and according to the proviso of Article 19(1) of the Enforcement Decree and Article 14 of the Enforcement Rule, the ratio of annual income of the land value per year to the land value is 4/100, and it does not constitute idle land.

B. Relevant statutes

Article 62 (1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4285 of Dec. 31, 1990), where a national transfers a parcel of land to a housing construction businessman registered under Article 6 of the Housing Construction Promotion Act (hereinafter referred to as a “housing constructor”) as a construction site for a house smaller than the size prescribed by the Presidential Decree (hereinafter referred to as the “national housing”), the tax amount equivalent to 50/100 of the transfer income tax or special surtax shall be reduced or exempted; Article 66-3 shall not apply to the land which is subject to taxation of the land excess profit tax under the Land Excess Profit Tax Act; Article 62 (1) of the Enforcement Rule (amended by the Ordinance of the Ministry of Finance and Economy No. 1822 of Apr. 10, 1990); Article 20-6 of the Enforcement Rule (amended by the Ordinance of the Ministry of Finance and Economy No. 1840 of Jan. 12, 199) provides that the transfer date of the remaining land shall be determined as of the land subject to taxation.

Meanwhile, Article 8 (1) of the former Land Excess Profit Tax Act (amended by Act No. 4561 of Jun. 11, 1993) provides that land falling under one of the following subparagraphs shall be the land owned by an individual; Article 8 (1) of the Enforcement Decree of the Public Notice of Values and Appraisal of Lands, etc. Act (referring to the financially owned land which is subject to the land excess profit-making tax); Article 8 (8) of the former Enforcement Decree of the Public Notice of Values and Appraisal of Lands, etc. Act provides that land exceeding the standard prescribed by the Presidential Decree in consideration of the size and facilities of sports facilities, such as playgrounds and stadiums; subparagraph 8 of subparagraph 12; and subparagraph 4 of paragraph (4) provides that the value of land and buildings under paragraph (1) shall be the amount appraised by the standard market price as prescribed by the Presidential Decree; Article 15 (1) of the former Enforcement Decree of the Public Notice of Values and Appraisal of Lands, etc. Act (amended by Presidential Decree No. 13198 of Dec. 31, 1990).

In addition, Article 4 of the Installation and Utilization of Sports Facilities Act (amended by Act No. 4719 of Jan. 7, 1994) provides that sports facilities shall be classified as follows. Article 1 of the Act provides that a golf course business, skiing ground business, and other sports facilities business exceeding a certain size as determined by the Presidential Decree, subparagraph 2 of the registered sports facilities business, and swimming pool business as reported sports facilities business. Sports place business and other sports facilities business as determined by the Presidential Decree are operated. Article 2 of the Enforcement Decree of the Act (amended by Presidential Decree No. 14284 of Jun. 17, 1994) provides for a golf course business (No. 1) as a registered sports facilities business under Article 4(1)1 of the Act. Article 3 provides that a golf range business (No. 1), a refining place business (No. 4), and a golf practice range business (No. 5) as a reported sports facilities business under Article 4(1)2 of the Act.

C. Determination

First, with respect to the plaintiff's first argument (the fact that the land excess profit tax is unconstitutional), the Constitutional Court held that the land excess profit tax law does not conform to the Constitution on July 29, 1994 (the first decision), but the land excess profit tax law on July 27, 1995 (the second decision) did not comply with the Constitution. However, in the first decision on July 27, 1995 (the second decision), Article 8 (1) 13, 14(1), 8 (4), 11, 12, and 26 of the former Enforcement Decree of the Land Excess profit Tax Act (the second decision), the above provision on the land excess profit tax on Article 15(1) of the former Enforcement Decree of the Tax Act (the second decision) was inconsistent with Article 15(1) of the former Enforcement Decree of the Tax Act and Article 26(4) of the same Enforcement Decree of the Tax Act, and thus, the above provision on the land excess profit tax on Article 45(1) of the former Enforcement Decree of the Tax Act (the Enforcement Rule No. 194.2) of the same Act).

Next, the plaintiff's second assertion (the fact that it is impossible to determine whether the land is idle land because it is impossible to calculate the ratio of the amount of income in calculating the amount of income) shall be examined as follows: Article 6-3 of the former Tax Reduction and Exemption Control Act; Article 20-6 of the Enforcement Rule of the former Tax Reduction and Exemption Control Act; Article 24 of the former Enforcement Decree of the Tax Reduction and Exemption Act; Article 3 of the former Installation and Utilization of Sports Facilities Act; and Article 3 of the Enforcement Decree of the former Installation and Utilization of Sports Facilities Act, etc.; the land in this case is a land for golf practice range and the annual revenue ratio of 7/100 of the land is equivalent to that of 7/100 of the amount of income for one year of December 31, 1989, which is the end of the year where the transfer date of the land in this case falls short of 7/100 of the amount of income for the year 1989.

However, in calculating the above revenue ratio, the value of the land of this case, which is based on the basis of the officially announced value as of December 31, 1989, shall be the land price (Article 24 subparagraph 1 of the Enforcement Decree of the Land Excess Gains Tax Act) for the individual lot calculated on the basis of the officially announced value as of December 31, 1989, which is the end of the year in which the transfer date belongs. However, since January 1, 1990, the Land Excess Gains Tax Act was enforced since January 1, 199, and the individual land price based on the officially announced value was publicly announced on August 30 of the same year (No. 8 of the same year) and became impossible to calculate the rate of the revenue amount on the basis of the individual lot as of December 31, 1989, so it is impossible to determine whether the land of this case is idle land, and it is unlawful to impose capital gains tax on the premise that the land of this case constitutes the Defendant's idle land under the Land Tax Act.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

June 7, 1996