In a case where the use of land was already restricted by administrative or administrative measures at the time of the acquisition of land, but it was illegal, whether it constitutes a case where there was a statutory restriction at the time of the acquisition of an exception to Article 23 subparagraph 1 of the former Enforcement Decree of the Land Excess Profit Tax Act (negative with qualification)

In determining whether there was a statutory restriction at the time of the acquisition of land as an exception to Article 23 subparagraph 1 of the former Enforcement Decree of the Land Excess Gains Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994), it shall not be deemed a valid statutory restriction unless there are special circumstances, such as the acquisition of land in question, where there was a restriction on use of land due to an administrative measure or administrative action at the time of acquisition, and where such restriction on use is illegal, unless there are special circumstances, such as the acquisition of the land in question, even if it

Article 8(3) of the Land Excess Profit Tax Act; Article 23 subparag. 1 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994)

[Defendant-Appellee] Defendant 1 and 1 other (Attorney Jeong Byung-hee, Counsel for defendant-appellee)

The Head of the Maternization Tax Office

1. The disposition that the Defendant imposes KRW 10,230,310 on the Plaintiff on November 5, 1993 shall be revoked.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the instant disposition

The following facts are acknowledged if there is no dispute between the parties, or if Gap evidence 1 through 3, Eul evidence 17-1, 2, Eul evidence 1-3, Eul evidence 2-1, 2-2, and Eul evidence 2-1, 2, and the whole purport of the pleading is gathered.

A. On May 20, 1978, the Plaintiff acquired between 23 and 866 square meters (hereinafter “instant land”) of Jongno-gu Seoul Jongno-dong 512-23 and 566 square meters, and owned the current status as forest land as of December 31, 1992.

B. Accordingly, on November 5, 1993, the Defendant imposed on the Plaintiff the tax amounting to KRW 13,230,310 for the taxable period from January 1, 1990 to December 31, 1992, on the ground that the instant land falls under the idle land subject to land excess profit tax (hereinafter “land excess profit tax”) pursuant to Article 8(1)14(a) of the Land Excess profit Tax Act as of December 31, 1992, and Article 21(1)1 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by the Presidential Decree No. 14470, Dec. 31, 1992).

C. However, in the administrative appeals procedure following the Plaintiff’s objection, the National Tax Tribunal decided to revise the tax base and tax amount by applying the basic deduction under Article 11-2 of the Act, which was enacted by Act No. 4807 of Dec. 22, 1994, and the tax rate under Article 12 of the Act amended by the same Act. Accordingly, on September 30, 1996, the Defendant re-calculated the tax base in accordance with the purport of the decision of the National Tax Tribunal, and subsequently corrected the tax amount based on the re-calculated to KRW 10,230,310, and notified the Plaintiff thereof (hereinafter the disposition of this case) around March 8, 1997.

2. Whether the instant disposition is lawful

A. Summary of the parties' assertion

The defendant asserts that the disposition of this case is lawful on the grounds of the above grounds of disposition and related statutes. Accordingly, the plaintiff asserts that the disposition of this case is unlawful since the land of this case is not idle land which is prohibited or restricted by law after its acquisition, and its use is not subject to imposition of soil tax as of the end of the taxable period

(b) Markets:

(1) Provisions and interpretation of the relevant statutes

According to Article 8(3) of the Act and the main sentence of Article 23 subparag. 1 of the former Enforcement Decree of the Act, where the use of land is prohibited or restricted by the provisions of statutes after the acquisition of land, it shall not be deemed idle land for three years from the date of such prohibition or restriction (Article 23 subparag. 1 of the Enforcement Decree of the Act amended by Presidential Decree No. 14470 of Dec. 31, 1994). However, the main provision of Article 23 subparag. 1 of the former Enforcement Decree provides that the use of land shall not be deemed idle land for a period of time when the use is prohibited or restricted, which is disadvantageous to the Plaintiff, so the provision of the former Enforcement Decree shall apply. The phrase “where the use is prohibited or restricted by the provisions of statutes” includes not only cases where the use is prohibited or restricted by the statutes itself, but also cases where the general authority granted by the provisions of statutes or the Administrative Organization Act is restricted by the provisions of statutes for three years from the date of imposition of administrative measures or administrative actions (see Supreme Court Decision 96Nu 263, etc.1965, supra).

Meanwhile, Article 3 of the Addenda of the former Enforcement Decree (amended by Presidential Decree No. 1990, Dec. 31, 1990) provides that "in cases of land, the use of which is prohibited or restricted by the provisions of Acts and subordinate statutes after the acquisition of land, the use of which was prohibited or restricted by the provisions of the Acts and subordinate statutes before this Decree enters into force, and where the use was continuously prohibited or restricted by the provisions of the Acts and subordinate statutes as of the enforcement date of this Decree, the use of which was prohibited or restricted

(2) Facts

According to the Rules 1 to 7 No. 1, 12, 14, and 4 of the Ministry of Construction and Transportation (amended by Rules 1 to 2 of the Ministry of Construction and Transportation No. 97), the land category of this case was changed to 'land category' as of January 21, 197; on the other hand, the land category of this case was not constructed as at the time of completion of the above housing site creation projects; on the other hand, the so-called "original site form and quality change" can be separately permitted for the land form and quality alteration of the land corresponding to the original standards of No. 1 to 97; on the other hand, the current status of the land falling under the original standards of No. 1 to 97 of the Ordinance No. 1 to 97 of the Ministry of Construction and Transportation (amended by Rules 1 to 1 to 97 of the Seoul Metropolitan Government) and the overall standards of No. 1 to 97 of the Rules No. 1 to 97 of the Urban Planning Act.

(3) Whether the statutory restrictions on use at the time of acquisition

Article 8(3) of the former Enforcement Decree does not exclude land, the use of which has already been prohibited or restricted by the provisions of statutes at the time of its acquisition, from the object of imposition of soil tax. This is because it is unreasonable in light of the legislative intent of not imposing soil tax on the ground that the general public knew or could have known such fact at the time of its acquisition (i.e., the acquisition of real estate speculation and the efficient use of land). However, unlike the cases where the use of land is prohibited or restricted by the Act and subordinate statutes itself, it would be unreasonable to premise that the public knew or could have known such circumstance at the time of its acquisition of land. As such, in cases of restriction on use by the Act and subordinate statutes itself, even if the general public becomes aware of it, it would be unreasonable to view that the use of land is restricted by the Act and subordinate statutes at the time of its acquisition, and thus, it would be unreasonable to view that it is an unlawful and unreasonable reason for taxpayers to have known or, in particular, in cases of restriction on use of land, whether it was an unlawful and unreasonable administrative measure.

However, according to the above facts, the land in this case has a total gradient of 24.4, and the permission of change of form and quality has been prohibited pursuant to Article 16(5) of the Guidelines for Handling Permission at the time of the Plaintiff’s acquisition. However, since the guidelines for handling permission prior to the enactment of the Criteria Rules on April 17, 1982 do not exist any legal grounds, the above restriction on use is illegal. Furthermore, there is no evidence to prove that there was special circumstances, such as the Plaintiff’s acquisition of the land in this case, even though he knew or could have known that there was such administrative measure at the time of the Plaintiff’s acquisition of the land in this case, there is no possibility that the Plaintiff will bear soil tax in the event of the Plaintiff’s acquisition of the land in this case, the use of which is restricted by the laws and regulations at the time of the Plaintiff’s acquisition of the land in this case. Therefore, there is no legal restriction on use of the land in this case as to the land in this case.

(4) Whether the legal restrictions after the acquisition are imposed

On or before September 1, 198, on the ground that the entire gradient falls under 16.7 land, the permission for changing the form and quality of land was prohibited on the ground that the execution of the project concerned is highly unreasonable land in light of the land or topographical conditions, etc. that are likely to cause serious damage to the surrounding environment, wind, aesthetic view, etc. due to the implementation of the project concerned. In fact, the plaintiff applied for permission for changing the form and quality of land, but the natural landscape was substantially damaged. In such a case, it is reasonable to view that the use of land in question falls under the case where the use of land is prohibited or restricted by the provisions of Acts and subordinate statutes as stipulated in the main sentence of Article 23

However, since the land in this case was already prohibited or restricted by the provisions of the former Enforcement Decree prior to the enforcement of the former Enforcement Decree, and was continuously prohibited or restricted by the former Enforcement Decree (amended by January 1, 1990), it constitutes the date on which the use was prohibited or restricted by December 31, 1989 pursuant to Article 3 of the Addenda of the former Enforcement Decree (amended by December 31, 1990). Therefore, the land in this case constitutes the land which is not considered as effective land regardless of whether the restriction on use was rescinded until December 31, 192, which is the end of the taxable period for the disposition in this case, is the land in this case.

3. Conclusion

Therefore, although the land of this case is not subject to the soil tax as of the expiry date of the taxation of this case, the disposition of this case imposing the soil tax on it is unlawful. Accordingly, the plaintiff's claim is justified, and the lawsuit cost is assessed against the losing defendant. It is so decided as per Disposition.

Judges Shin Hyun-chul (Presiding Judge)