(a) Time to determine whether the idle land falls under the category of reduction of and exemption from special surtax under the former Regulation of Tax Reduction and Exemption Act;

B. Whether Article 20-6 of the former Enforcement Rule of the Regulation of Tax Reduction and Exemption Act is invalid

(c)the taxation requirements of special surtax and applicable laws and regulations at the time of determination of exemption requirements;

D. Relationship between Articles 66 and 66-3 of the former Regulation of Tax Reduction and Exemption Act

E. Whether retroactive legislation is applicable to a new legislation that reduces the scope of reduction and exemption of special surtax, which serves as a taxation requirement for the transfer of land owned by a corporation, to the land acquired prior to its enforcement

A. The phrase “land subject to the land excess profit tax under the Land Excess Profit Tax Act” under Article 66-3 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4285 of Dec. 31, 1990) refers to idle land, etc. as stipulated in Article 9 of the former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994), and even if the time to determine whether such idle land falls under such idle land is not separately provided, it shall be interpreted that the special surtax is a taxation requirement like the transfer income tax, and it shall be interpreted that it is based on the transfer date as of the transfer date, barring any special circumstances, considering the characteristics that is subject to the transfer gains subject to the taxation, unless there

B. Article 20-6 of the former Enforcement Rule of the Regulation of Tax Reduction and Exemption Act (amended by the Ordinance of the Ministry of Finance and Economy No. 1850 of March 13, 191) provides that “The determination of whether the land is subject to the land excess profit tax under Article 66-3 of the Act shall be based on whether the land is idle land as of the date of transfer shall be based on whether it falls under the idle land as of the date of transfer.” Since it clearly expresses the same purport as “A”, the above provision shall not be deemed to be null and void

C. In the special surtax, as in the transfer income tax, the transfer act shall be subject to taxation, and its taxation requirements and tax exemption requirements should be determined at the time of transfer due to its nature that is subject to transfer gains, and the time of acquisition shall also be determined by the tax laws and regulations at the time

D. Even in a case where the special surtax is reduced or exempted pursuant to Article 60(1) of the former Regulation of Tax Reduction and Exemption Act, if the land falls under any of the land stipulated in Articles 66 and 66-3 of the same Act, the special surtax on the transfer of the land shall not be reduced or exempted.

E. The principle of non-payment in the tax law means that the pertinent tax law cannot be applied to the completed facts before the entry into force of the relevant tax law, and it does not limit the application of a new law to the taxation requirement facts that occurred thereafter. Thus, a new legislation that reduces the scope of reduction and exemption in the special surtax, which is a taxation requirement for the transfer of land owned by a corporation, is applied only to the transfer that takes place after the enforcement of the new legislation, the mere fact that the time of acquisition of land, etc. is before the new legislation cannot be seen as a retroactive legislation.

A. D. E. Article 6-3(a) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4285, Dec. 31, 1990); Article 9(b) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4807, Dec. 22, 1994); Article 20-6(c) of the former Enforcement Rule of the Regulation of Tax Reduction and Exemption Act (amended by Ordinance of the Ministry of Finance and Economy No. 1850, Mar. 13, 1991); Article 59-2(4) of the former Corporate Tax Act (amended by Act No. 4804, Dec. 22, 1994); Article 124-2(11) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 13195, Dec. 31, 190); Article 60(1) and Article 66(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act)

A. (B) Supreme Court Decision 94Nu5908 delivered on Nov. 4, 1994 (Gong1994Ha, 3290). (B) Supreme Court Decision 92Nu15925 delivered on Feb. 26, 1993 (Gong1993Sang, 1111) 92Nu14045 delivered on May 25, 1993 (Gong1993Ha, 1923), 93Nu21361 delivered on Feb. 8, 1994 (Gong194Sang, 10351 delivered on Feb. 22, 1994). Supreme Court Decision 93Nu1359 delivered on Feb. 28, 1994 (Gong194Sang, 1124) 90Nu304399 delivered on Feb. 39, 194 (Gong194Sang, 194Du3294395 delivered on Feb. 19494)

Daegu Bank Co., Ltd., Counsel for the defendant-appellant

Head of Dong Daegu Tax Office

Daegu High Court Decision 93Gu2170 delivered on April 29, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. As to ground of appeal No. 1

Article 66-3 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4285, Dec. 31, 1990; hereinafter the same) provides that "land subject to the land excess profit tax under the Land Excess Profit Tax Act" means idle land, etc. as provided in Article 9 of the former Land Excess Profit Tax Act (amended by Act No. 4807, Dec. 22, 1994; hereinafter the same shall apply). Even if the time to determine whether such idle land falls under such idle land, it shall be interpreted that the special surtax is a taxation requirement like the transfer income tax, and it shall be interpreted that it is based on the transfer date as of the transfer date, barring any special circumstances, considering the characteristics that it is subject to the transfer gains subject to the transfer gains tax, barring any other special circumstances.

Therefore, Article 20-6 of the former Enforcement Rule of the Regulation of Tax Reduction and Exemption Act (amended by Ordinance of the Ministry of Finance and Economy No. 1850, Mar. 13, 1991; hereinafter the same) provides that “The determination of whether the land is subject to the land excess profit tax under Article 66-3 of the Act shall be based on whether the land falls under idle land as of the date of transfer” is merely a clear purport of the above. Thus, the above provision is not deemed invalid beyond the scope prescribed by the Act without being delegated by the Act (see Supreme Court Decision 92Nu15925, Feb. 26, 1993).

In the same purport, the court below determined that the land of this case constitutes idle land, etc. stipulated in Article 66-3 of the former Regulation of Tax Reduction and Exemption Act as of the date of transfer under Article 20-6 of the former Enforcement Decree of the Tax Reduction and Exemption Act, and on the premise that the land of this case constitutes idle land as of the date of transfer under Article 8 of the former Regulation of Tax Reduction and Exemption Act as of the date of transfer, there is no dispute between the parties. Thus, the court below's determination that the land of this case constitutes idle land, etc. under Article 60 (1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4285, Dec. 31, 1990; hereinafter the same shall apply) which is the provision of special surtax reduction and exemption under Article 66-3 of the former Regulation of Tax Reduction and Exemption Act shall be excluded from the application of the former Regulation of Tax Reduction and Exemption Act as of the date of transfer under Article 3 (2) and Article 6 of the same Act, and thus, the court below's determination of the above provision shall not be justified.

2. As to the second ground for appeal:

According to the reasoning of the judgment below, the court below rejected the Plaintiff’s claim that the special surtax exemption provisions under Article 66 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666 of Dec. 31, 1993; hereinafter the same shall apply), Article 66 of the former Regulation of Tax Reduction and Exemption Act, Article 54 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14084 of Dec. 31, 1993; hereinafter the same shall apply), and Article 66-3 of the same Act shall not be exempted if the land of this case falls under any one of the land stipulated in the former Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 14084 of Dec. 31, 1993; hereinafter the same shall apply), on the ground that there is no evidence to support that the date of the Plaintiff’s settlement of the price of the site of this case does not exceed one month, and thus, it cannot be excluded from the application of the special surtax exemption provisions under Article 663 of the same Act.

In the special surtax, as in the transfer income tax, the transfer act shall be a taxation requirement, and the taxation requirements and tax exemption requirements shall be determined at the time of transfer, and the time of acquisition shall also be determined by the tax-related Acts and subordinate statutes at the time of transfer. Thus, the theory that the time of acquisition of the site of this case shall be determined by the tax-related Acts and subordinate statutes at the time of acquisition is an

However, Article 59-2 (4) of the Corporate Tax Act, which was enforced at the time of the transfer of the site of this case, provides that the time of acquisition and time of transfer shall be determined by the Presidential Decree in calculating gains from the transfer of land, etc., and Article 124-2 (11) of the Enforcement Decree of the same Act provides that Article 53 of the Enforcement Decree of the Income Tax Act shall apply mutatis mutandis to the time of acquisition and time of transfer under Article 59-2 (4) of the same Act. Article 53 of the Enforcement Decree of the Income Tax Act shall apply mutatis mutandis to the time of acquisition and time of transfer. Article 53 (1) (main sentence) of the Enforcement Decree of the Income Tax Act shall be the date of settlement where the price is clear, and if the date of the settlement is unclear, it shall be the date of the balance payment agreement entered in the sales contract. However, if the date of the balance payment agreement is not confirmed or the period from the date of the payment agreement entered in the sales contract exceeds one month from the date of receipt of the registration, it shall be excluded.

Nevertheless, the court below's rejection of the plaintiff's above assertion on February 3, 1981, since there is no evidence to support that the date of the plaintiff's settlement of the price of the site of this case was June 30, 1980, and there is no evidence to support that the date of acquisition is the date of receipt of the registration, shall not be deemed to mislead the plaintiff as to the misconception of facts against the rules of evidence.

However, the court below, as the plaintiff's additional determination on the above assertion, held that the above assertion by the plaintiff is groundless, as long as the land in this case falls under the land stipulated in Article 66-3 of the former Regulation of Tax Reduction and Exemption Act and the special surtax pursuant to Article 54 of the Enforcement Decree of the same Act cannot be excluded from the reduction or exemption of special surtax due to the transfer of the land in this case, as alleged above, although the plaintiff acquired the land in this case before January 1, 1981 and acquired it before January 1, 19

Even in cases of land, etc. for which special surtax is reduced or exempted pursuant to Article 60 (1) of the former Regulation of Tax Reduction and Exemption Act, if the relevant land, etc. falls under any of the land stipulated in Articles 66 and 66-3 of the same Act, the special surtax following the transfer of such land, etc. shall not be reduced or exempted. Accordingly, the court below's additional decision to the same purport is just, and therefore, it is obvious that the plaintiff's above assertion will be dismissed, so the above error of the court below shall not be deemed to be an error of law as a ground for reversal because it does not affect the conclusion of the judgment

3. As to ground of appeal No. 3

The principle of non-payment in the tax law means that the relevant tax law cannot be applied to the completed facts before the entry into force of the relevant tax law, and it does not limit the application of the new law to the taxation requirement facts. Thus, inasmuch as the new legislation that reduces the scope of reduction and exemption in the special surtax, which serves as the taxation requirement for the transfer of land owned by a corporation, is applied only to the transfer made after the enforcement of the new legislation, the mere fact that the time of acquisition of the land is prior to the new legislation cannot be seen as a retroactive legislation (see, e.g., Supreme Court Decision 93Nu20726, Feb. 25, 1994; 93Nu13131, May 24, 1994).

Article 6-3 of the former Regulation of Tax Reduction and Exemption Act, which was newly established on December 31, 1989, provides that the provisions of Article 60 (1) of the former Regulation of Tax Reduction and Exemption Act, which provides for the exemption of special surtax, shall not apply to the transfer of land, etc. for public projects to which the Public Tax Reduction and Exemption Act applies, as in this case, to the State. Article 1 of the Addenda of the same Act (the Addenda of December 31, 1989) provides that this Act shall enter into force on January 1, 1990, and Article 66-3 of the former Regulation of Tax Reduction and Exemption Act provides that the provisions of Article 66-3 of the former Regulation of Tax Reduction and Exemption Act shall apply from the first transfer after this Act enters into force. Thus, even if the Plaintiff acquired the land of this case before the enactment of the provisions of Article 66-3 of the former Regulation of Tax Reduction and Exemption Act, the above provision shall apply to whether the special surtax under this case would be exempted, and therefore, the Defendant violated the above provision of Article 60 (1) of the former Framework Act and the Act.

Therefore, since the provision of Article 6-3 of the former Regulation of Tax Reduction and Exemption Act is invalid in violation of the principle of prohibition of retroactive taxation under Article 13(2) of the Constitution and Article 18(2) of the Framework Act on National Taxes, even if the court below omitted the judgment on the plaintiff's assertion that the disposition of this case, which applied the same provision, is unlawful, it is obvious that the plaintiff's above assertion will be rejected, and such mistake of the court below is not an error of law that constitutes the ground for reversal because it has no influence on the conclusion of the judgment. Furthermore, as long as the court below rejected the judgment of the court below that it violated the principle of pleading by judging the matters not asserted by the plaintiff, such error of law does not affect the conclusion of the judgment

4. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)