(a) The meaning of “B” as provided in Article 8(1)14(a) of the Land Excess Profit Tax Act

(b) Requirements for exclusion from idle land as land annexed to a house on which a building is being constructed;

(a) For the purpose of Article 8 (1) 14 (a) of the Land Excess Gains Tax Act, the term “b land as provided in Article 8 (1) 14 (a) of the same Act” means the land which is not used for the purposes under Article 8 (1) 1 through 13 and Article 9 (3) 1 through 5 of the same Act, and Article 21 (1) 2 through 5 and Article 21 (2) of the Enforcement Decree of the same Act

(b) Land for which construction is in progress after obtaining permission for construction of multi-household houses at the time of the date of land transfer shall not be exempted as it falls under Article 8 (1) 4 of the same Act and Article 8 (1) 14 (a) of the Enforcement Decree of the same Act, unless it falls under land annexed to housing specific purposes under Article 8 (1) 14 (a) of the same Act and is excluded from idle land. In order to exclude idle land from idle land as land annexed to multi-household houses, buildings shall be constructed as of the date of transfer under the conditions as prescribed by the Presidential Decree

(a) Article 8(1)14(a) of the Land Excess Profits Tax Act; Article 21(1)1(b) of the Enforcement Decree of the same Act; Article 8(1)4 of the Land Excess Profits Tax Act; Article 10 and Article 22 of the Enforcement Decree of the former Land Excess Profits Tax Act;

[Judgment of the court below]

The Director of Gangnam District Office

Seoul High Court Decision 92Gu12850 delivered on February 5, 1993

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the first and second grounds for appeal

Article 66-3 of the Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989 and amended by Act No. 4285 of Dec. 31, 1990) (the "land subject to the land excess profit tax" refers to the idle land, etc. prescribed in Article 8 of the Land Excess profit Tax Act, and even if there is no separate provision of the time to determine whether such idle land falls under such idle land, it is reasonable to interpret that such idle land is based on the date of transfer according to the general principle of imposition of capital gains tax (see, e.g., Supreme Court Decision 92Nu15925, Feb. 26, 1993; 92Nu14045, May 25, 1993). Therefore, if the relevant land is prescribed in Article 8 (1) of the Land Excess Income Tax Act as of the date of transfer, it does not belong to the grounds for exclusion of capital gains tax.

2. On the third ground for appeal

According to the reasoning of the judgment below, with respect to the plaintiff's assertion that the land of this case is not idle land as of the date of transfer, the court below held that, based on its adopted evidence, the plaintiff applied for a construction permit under the name of the plaintiff on July 7, 1990, and obtained a construction permit for multi-household housing in the national housing scale from the head of the competent Gu on the 14th of the same month after the purchase and sale contract of the land of this case, and changed the name of the non-party company in the name of the non-party company. The non-party company started construction for constructing multi-household housing from that time on the land of this case and completed underground excavation work from that time to that of the 26th of the same month, but it is recognized that the construction was in progress, but there was no evidence that construction was under way since the completion of construction as stipulated in Article 22 (1) of the Enforcement Decree of the Land Excess Profit Tax Act as of July 26, 1990, the land of this case constitutes idle land subject to taxation.

Article 8 (1) 1 through 13 of the Land Excess Profits Tax Act provides for the scope of idle land according to the classification according to the use of land in subparagraphs 1 through 13 of paragraph (1), subparagraph 14 provides for land for other than the above purpose, which is listed as one of the items in subparagraph (a). Article 21 (1) 1 of the Enforcement Decree of the same Act provides for "land which does not fall under any of subparagraphs 1 through 13 of Article 8 (1) of the Act and subparagraphs 1 through 5 of Article 9 (3) of the Act, which is not used for any of the items in subparagraphs 2 through 5 of paragraph (1) of the same Article and subparagraph 1 of paragraph (2) of the same Article provides for the supplementary concept of subparagraph 1 of the same Article, which is not provided for in subparagraphs 2 through 5 of paragraph (1) of the same Article, and subparagraph 1 through 5 (b) of paragraph (1) of the same Article provides for the land which is not used for any of the items in subparagraphs 1 through 3 through 5 (b) of subparagraph 1 of paragraph 2 of the same Article.

According to the facts established by the court below, since construction is in progress, such as completing underground excavation by obtaining permission for construction of multi-household houses at the time of the transfer date of the land in this case, the use of the land in this case shall not be exempted from idle land because it falls under Article 8 (1) 4 of the same Act and Article 10 of the Enforcement Decree of the same Act, unless it is excluded from idle land because it falls under the land annexed to the housing for specific purposes under Article 8 (1) 14 (a) of the same Act. In order to be excluded from idle land as land annexed to multi-household houses, buildings shall be constructed as of the transfer date under the conditions as prescribed by the Presidential Decree in accordance with Article 8 (2) of the same Act

However, according to Article 22 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13198, Dec. 31, 1990) which was applied as of the above transfer date, if a building is completed or the construction period under the construction permit is not less than one year, and if the construction is completed at least based on the scheduled construction period as of the expiration date of the taxable period (in this case, the date of the transfer is to be read as of the date of the transfer), the building which is scheduled to be completed shall be deemed to have been completed. According to the item of the construction permit for multi-household housing of this case (Evidence No. 7), the construction period is not specified, and according to the item of the construction permit for multi-household housing of this case and the testimony of the non-party witness, it shall be deemed that the construction permit date is the date of July 14, 1990 and the completion date is the date of Dec. 24, 199).

Therefore, in determining whether the land in this case is land annexed to multi-household housing, which is scheduled to be constructed, the application of Article 22 (1) of the Enforcement Decree of the same Act as amended on December 31, 1990 after the transfer date is erroneous as pointed out by the theory of lawsuit. However, as seen above, since the land in this case is not changed into idle land even according to the law that was enforced at the time as seen above, it shall not affect its conclusion. Therefore, there is no reason to argue that the land in this case does not belong to the land in this case from another view, and the argument that the court below erred by retroactively applying the above Enforcement Decree is without merit.

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

Justices Park Jong-chul (Presiding Justice)