[1] The case affirming the judgment of the court below that the disposition of imposition of the land excess profit tax on the reference land under the former Land Excess Profit Tax Act is legitimate

[2] Whether interpreting a different method of appeal against the officially announced price of the reference land and individual land price is in violation of the principle of equality under the Constitution and the principle of guaranteeing jurisdiction (negative)

[3] Whether the basic deduction can be made for each co-owner when calculating the tax base for land excess profit tax on co-owned land (negative)

[1] The case holding that the court below's determination that the disposition of imposition of the land excess profit tax, which is the standard land value under the former Land Excess profit Tax Act, is legitimate, without regard to the amendment of the Land Excess Gains Tax Act, is just, and there is no violation of the misapprehension of legal principles, the principle of strict interpretation of tax law, or the principle of prohibition of retroactive taxation

[2] Unlike the method of filing an appeal against the officially announced land price of the standard land, the method of filing an appeal against the disposition agency by going through the procedure under Article 8(1) of the Act on the Publication of Land Prices and the Evaluation of Land, Etc., and without going through such procedure, the method of filing an appeal against the determination of the officially announced land price of the standard land can only be contested against the disposition agency, and it shall not be deemed that the method of filing an appeal against the officially announced land price of the standard land is against the principle of equality under the Constitution and the principle of guaranteeing jurisdiction, on the ground that the method of filing an appeal against the officially announced land price of the standard land is different from the method of filing an appeal against the individual land price of the standard land.

[3] In light of the purport of the Land Excess Gains Tax Act and the purport of the provisions of Articles 11(1) and 11-2(1) of the Act, in calculating the tax base of the land excess profit tax on co-owned land, the basic deduction under Article 11-2 of the Act can only be made once from the land excess profit tax on co-owned land, on the ground that there are many co-owners co-ownership of the land.

[1] Article 8 (4) 1 of the Land Excess Gains Tax Act; Article 24 subparagraph 1 of the former Enforcement Decree of the Land Excess Gains Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994) / [2] Articles 11 and 27 (1) of the Constitution of the Republic of Korea; Article 8 (1) of the former Act on Publication of Land Prices and Evaluation of Land Prices (amended by Act No. 5108 of Dec. 29, 1995) / [3] Articles 11 (1) and 11-2 (1) of the Land Excess Gains Tax Act

[2] Supreme Court Decision 95Nu16468 delivered on November 10, 1995 (Gong1995Ha, 3947), Supreme Court Decision 95Nu11931 delivered on September 20, 1996 (Gong1996Ha, 3211), Supreme Court Decision 96Nu1025 delivered on February 28, 1997 (Gong1997Sang, 96Nu895 delivered on April 11, 1997 (Gong197Sang, 488) / [3] Supreme Court Decision 96Nu3890 delivered on July 9, 199 (Gong196Ha, 2542), Supreme Court Decision 97Nu196989 delivered on September 29, 196 (Gong25989 decided September 29, 196)

Plaintiff 1 and two others (Attorneys Jeon Soo-soo et al., Counsel for the plaintiff-appellant)

Head of Ansan Tax Office

Seoul High Court Decision 94Gu29340 delivered on April 16, 1996

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiffs’ appeals are dismissed.

The grounds of appeal are examined.

1. Regarding the plaintiffs' grounds of appeal

A. On the first ground for appeal

On July 29, 1994, the Constitutional Court rendered a decision that the former Land Excess Gains Tax Act (amended by Act No. 4807 of Dec. 22, 1994) does not coincide with the Constitution. Accordingly, the National Assembly amended each provision that pointed out that the above decision of inconsistency with the Constitution by Act No. 4807 of Dec. 22, 1994 is unconstitutional, and Article 8 (4) 1 of the Land Excess Gains Tax Act (hereinafter referred to as the "Act") which is the issue in this case is that the land price of the land subject to the land Excess Gains Tax shall be determined based on the officially announced land price and appraised land price (hereinafter referred to as the "Land Excess Act") and Article 108 (1) 1 of the same Act (see, e.g., Article 96 (3) of the same Act) is retroactively applied to the case prior to the amendment by the head of Si/Gun/Gu.

In the same purport, the court below's determination that the price of the land of this case, which is the standard land price, is deemed the officially announced land price and that the tax base is calculated and lawful is just without regard to the amendment of the law, and it is not erroneous in the misapprehension of legal principles, the principle of strict interpretation of tax statutes, or the principle of retroactive taxation prohibition as otherwise alleged in the ground of appeal. The ground of appeal pointing this out

B. On the second ground for appeal

With respect to the officially announced value of the land selected as the reference land, the illegality of the determination of the officially announced value can only be asserted against the disposition authority through the procedure of objection under Article 8(1) of the Public Notice of Values Act, and without following such procedure, the illegality of the determination of the officially announced value shall not be asserted in the tax lawsuit (see Supreme Court Decisions 93Nu1648 delivered on November 10, 1995, 96Nu895 delivered on April 11, 197, etc.).

The decision of the court below to the same purport is just, and there is no error in the misapprehension of the legal principle as otherwise alleged in the ground of appeal, and the method of appeal against the officially announced land price of the standard land is limited as above, unlike the method of appeal against the individual land price, considering that the officially announced land price of the standard land and the individual land price are different from each other on several grounds, such as its purpose, object, decision-making institution, decision-making procedure and amount, so the method of appeal against the officially announced land price of the standard land is recognized differently from the method of appeal against the individual land price, and it cannot be deemed as a violation of the constitutional equality principle and the principle of guaranteeing jurisdiction. The grounds of appeal cannot be accepted.

2. As to the Defendant’s ground of appeal

According to the reasoning of the judgment below, in calculating the legitimate land excess profit tax amount from January 1, 1990 to December 31, 1992 on the plaintiffs (1/3 of the co-owner of the land of this case), the court below determined that the amount of 93,128,691 won, calculated by applying the tax rate for the tax base exceeding 190,257,383 won as stipulated in Article 11-2 of the Act, from 192,257,383 won to 192,20,000 won for each of the land excess profit amounting to 190,257,383 won to 10,000 won as stipulated in Article 12-2 of the Act.

However, in light of the purport of the law that intends to recover land excess profits that the owner obtains as a tax due to the increase of land price due to various development projects and other social and economic factors, and the contents of Articles 11(1) and 11-2(1) of the Act, in calculating the tax base of land excess profits tax for co-owned land, only one basic deduction under Article 11-2 of the Act can be made only once from the land excess profits tax for the land and only one basic deduction under Article 11-2 of the Act can be made (see Supreme Court Decisions 96Nu7199 delivered on September 20, 196, 96Nu8659 delivered on February 14, 197, etc.).

Nevertheless, the court below divided the excess gains of the land of this case, which is a parcel, by the plaintiffs' shares, and calculated each tax base by making the basic deduction for each plaintiff, and then calculated the tax amount accordingly. The judgment below is erroneous in the misapprehension of legal principles as to the basic deduction, and it is obvious that such illegality has affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Therefore, the part of the judgment of the court below against the defendant shall be revoked, and the case shall be remanded to the court below for a new trial and determination. The plaintiffs' appeals are all dismissed, and it is so decided as per Disposition by the assent of all participating Justices

Justices Park Jong-chul (Presiding Justice)