Criteria for determining whether "land not suitable for construction or use" under subparagraph 10 of Article 78-3 of the Enforcement Rule of the Local Tax Act is "land"

The determination of whether the land falls under the land inappropriate for construction or use in the technology or economy because it is the location and form of the land referred to in subparagraph 10 of Article 78-3 of the Enforcement Rule of the Local Tax Act shall be made based on objective technology and economic feasibility, and it shall not be determined compared with the subjective technology or history of the land owner.

Enforcement Rule of the Local Tax Act Article 78-3 No. 10

[Defendant-Appellant] Park Jae-sik, Counsel for defendant-appellant

Head of the North Korean Office in Daegu Special Metropolitan City

Daegu High Court Decision 84Gu77 delivered on August 21, 1984

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Daegu High Court.

The defendant's grounds of appeal Nos. 1 and 2 are examined together.

1. In its reasoning, the lower court determined that: (a) as of September 16, 1983, it is difficult to construct the instant land on the ground that it was designated as an apartment zone under the Urban Planning Act as of September 16, 1983 as of the date the property tax payment period for the land was commenced in 3,120.7 square meters from 3,664 square meters owned by the Plaintiff; and (b) there is a need for considerable funds to construct a building other than an apartment on the said land; (c) the said land is connected to the wall with the northwestwestwest-gu, Daegu, Daegu, which was owned by the Plaintiff, with approximately 6 meters high in width and about 15 degrees Northwest-do, and its ground is close to the ground surface; and (d) most surrounding land is difficult to construct unless it is stopped on the surface of the road; (d) the instant land should be deemed as unlawful by the Defendant’s application of Article 18(1)1 of the Local Tax Act to construct an apartment building on the same ground; and (e.)

2. However, the legislative intent of Article 78-3 subparag. 10 of the Enforcement Rule of the Local Tax Act is to exclude certain land from public land subject to heavy taxation, in that it is not possible to expect the landowner to construct or use it, in a case where construction or use is technically inappropriate or economic feasibility exists in view of the objective location and form of the land even though it satisfies the requirements for public land, and where construction or use is not technically inappropriate or economical, it shall be determined on the basis of objective technology and economic feasibility, and it shall not be determined in comparison with the subjective technology or financial history of the landowner.

3. The court below determined that the land in its judgment solely based on the above circumstances constituted the land inappropriate for construction or use in the economic aspect because it is its location and form. However, the circumstances in its reasoning can not be readily concluded that the use or construction of the land in light of the Plaintiff’s subjective financial power, which is the land owner, could not be the reason why the use or construction of the land in its judgment might be economically economical or there is no objective economic feasibility. Rather, according to the records, the Defendant asserted that the land in this case was expropriated at KRW 203,396,40 on Nov. 10, 1983, which was three months after the date the payment period of property tax begins, and it is proved that it was more than three meters higher than the road, and that it was being newly constructed on the ground and supported by the fact that the apartment construction is in progress. Thus, it is difficult to view the land in this case as the location and form of the land at the time of the original payment of property tax.

The court below decided that the land of this case constitutes land to be excluded from the vacant land stipulated in Article 78-3 subparagraph 10 of the Enforcement Rule of the Local Tax Act for reasons stated in its holding, and there is no violation of law by failing to properly satisfy the grounds, or by failing to exhaust all necessary deliberations as to whether economic feasibility exists with respect to the use or construction of the land. Therefore, the appeal is justified.

4. Therefore, the part of the lower judgment against the Defendant is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Il-young (Presiding Justice) Gangwon-young Kim Young-ju