Whether the land is exempt from the aggregate land tax as provided in Article 234-11(2) of the Local Tax Act in a case where it is impossible to use the land due to the use of the adjacent land for public use (negative)

Article 234-11 (2) of the Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994) provides that no aggregate land tax shall be imposed on the land used by the State, a local government, or a local government association for official or public use for at least one year. The non-taxation provided for in the above provision refers only to the land used by the State, etc. for official or public use, and it cannot be said that the owner of the adjacent land was unable to use it for official or public use.

Articles 234-11(2) and 234-15 of the Local Tax Act (Amended by Act No. 4794, Dec. 22, 1994); Articles 194-14(1) and 194-16(1) of the former Enforcement Decree of the Local Tax Act (Amended by Presidential Decree No. 15211, Dec. 31, 1996);

Dsung Construction Co., Ltd. (Attorney Yellow-chul, Counsel for the plaintiff-appellant)

The head of Gangnam-gu Seoul Metropolitan Government

Seoul High Court Decision 98Nu5783 delivered on April 7, 1999

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

1. We examine the first ground for appeal.

Article 234-11 (2) of the Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994) provides that no aggregate land tax shall be imposed on land used by the State, local governments, and local government associations for official or public use for at least one year. The non-taxation provided for in the above provision refers only to the land used by the State, etc. for official or public use, and it shall not be subject to non-taxation under the above provision on the ground that the owner of the adjacent land was unable to use it for official or public use.

Thus, the plaintiff tried to construct a main complex building on the land in Gangnam-gu Seoul ( Address 1 omitted) and the land adjacent thereto ( Address 2 omitted) (hereinafter "the adjoining land in this case"). However, the Seoul Regional Police Agency's cost was not a construction work on the land in this case because it occupied and used the adjoining land until June 1, 1996, which is the tax base date in this case, until June 1, 1996. Thus, the plaintiff's assertion that the land in this case should be exempted from the aggregate land tax under the above Local Tax Act is without merit in light of the legal principles as seen earlier.

Although the court below is somewhat inappropriate in its reasoning, it is just in its conclusion that rejected the plaintiff's above assertion, and it cannot be said that there is a misapprehension of the legal principles as to mistake of facts or non-taxation requirements for aggregate land tax due to violation of the rules of evidence as alleged in the grounds

2. We examine the second ground for appeal.

According to the reasoning of the judgment below, the court below acknowledged that the non-party, an employee belonging to the defendant, went to conduct a field investigation on May 30, 1996, which was the day before the tax base date of this case, had some soundproof walls installed on the side side of the south-west circulation road, northwest, which was north, on the land of this case, but had been used in the state where a model house was constructed on the area corresponding to the substantial part of the land of this case (Amb. 1,217mm2), and the remainder was left alone without any special ground surface. The above non-party went to conduct a second site investigation on July 22 of the same year, but the above model house was left as it was, and there was no ground inside the soundproof wall on May 30 of the same year, and determined that the land of this case could not be considered as the "land under construction" as at the tax base date of this case in light of such circumstances.

The above fact-finding and judgment of the court below are justified and acceptable, and there is no misconception of facts or misapprehension of legal principles as to land under construction due to a violation of the rules of evidence as alleged in the grounds of appeal. The grounds of appeal are without merit.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ji-dam (Presiding Justice)