(a) Criteria for determining whether the use of a corporation’s non-business real estate is prohibited or restricted under the provisions of Acts and subordinate statutes;

B. The case reversing the judgment of the court below on the ground that the decision of the court below was not fully examined as to the restriction on construction at the time of acquisition, although the construction was designated and publicly announced as the planned housing site development district after the acquisition cannot be seen as a case where the use was prohibited or restricted by the Act and subordinate statutes

A. One of the cases where a corporation's non-business real estate is not deemed one, and Article 18 (4) 1-2 of the Enforcement Rule of the Corporate Tax Act provides that "after the acquisition of the pertinent real estate shall be a real estate, the use of which is prohibited or restricted under the provisions of the Act and subordinate statutes." Thus, if the land has already been prohibited or restricted under the provisions of the Act and subordinate statutes before the acquisition of the land, it is not possible to apply it. Thus, in principle, whether the use is prohibited or restricted under the Act and subordinate statutes shall be determined in comparison with the project that has been executed at

B. The case reversing the judgment of the court below on the ground that it failed to fully conduct an examination as to the restriction on construction at the time of acquisition, on the ground that, in comparison with the relevant laws and regulations, if construction was already restricted at the time of acquisition by individual and specific examination in comparison with whether a corporation had been able to construct a tenement house which is the purpose of business at the time of acquisition of land, it cannot be viewed that the designated and publicly announced area as the planned area

(a) Article 18(4)1-2 of the Enforcement Rule of the Corporate Tax Act; Article 66(1)12 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 13655, May 30, 192); Article 4(1)3 and Article 7(2) of the Seoul Special Metropolitan City Comprehensive Land Use Guidelines (amended by Presidential Decree No. 458, Aug. 17, 1984);

A. Supreme Court Decision 91Nu11506 delivered on June 23, 1992 (Gong1992, 2307). Supreme Court Decision 90Nu6590 delivered on December 7, 1990 (Gong1991, 503)

Seoul High Court Decision 200Na1484 decided May 1, 200

The Director of the Central Tax Office

Seoul High Court Decision 93Gu5699 delivered on February 16, 1994

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the plaintiff acquired a total of 16,868 square meters in Jung-gu Seoul Metropolitan Government ( Address 1 omitted), 16,868 square meters in miscellaneous land between February 19, 1988 and October 31 of the same year for the purpose of newly constructing and selling housing (hereinafter "real estate in this case"). However, the court below determined that the real estate in this case was no longer subject to the restriction on the use of the land for non-business purposes under the provisions of the Act and subordinate statutes since it was decided by the Seoul Special Metropolitan City Mayor on May 3, 1989 as a prospective site for housing site development under the provision of the Housing Site Development Promotion Act, and that the real estate in this case shall not be subject to the restriction on the use of the land for non-business purposes under the provisions of the Act and subordinate statutes, and it shall not be subject to the restriction on the use of the land for non-business purposes under Article 6(1)2 of the Enforcement Decree of the Housing Site Development Promotion Act.

2. Article 20-2 of the Enforcement Rule of the Regulation of Tax Reduction and Exemption Act (wholly amended by the Ordinance of the Ministry of Finance and Economy No. 1970 of Apr. 13, 1994) provides for the criteria for determining non-business real estate excluded from non-taxation and reduction of special surtax pursuant to the delegation of Article 66 of the Act on the Regulation of Tax Reduction and Exemption (wholly amended by the Act No. 4666 of Dec. 31, 1993) and Article 54 of the Enforcement Decree of the same Act (wholly amended by the Presidential Decree No. 14084 of Dec. 31, 1993), and provides for the criteria for determining non-business real estate excluded from non-taxation and reduction of special surtax, and Article 18(4)1-2 of the Enforcement Rule of the Corporate Tax Act provides for cases falling under paragraph (2)4 of the same Article

However, since Article 18 (4) 1-2 of the Enforcement Rule of the Corporate Tax Act provides that "after the acquisition of the pertinent real estate, the use of the pertinent real estate is prohibited or restricted under the provisions of the Act and subordinate statutes, if the land of this case was already prohibited or restricted under the provisions of the Act and subordinate statutes before the plaintiff's acquisition, there is no room to apply it. Thus, in principle, the issue of whether the use is prohibited or restricted under the Act and subordinate statutes must be decided in comparison with the main business at the time of the acquisition of the land (see Supreme Court Decision 91Nu1506 delivered on June 23, 192), and the relevant issue shall be determined individually in light of the

According to the records, since the plaintiff acquired the land of this case for the purpose of newly constructing a tenement house (record 291,292 pages), it is problematic in this case as to whether the construction of a tenement house on the land of this case was prohibited or restricted by the provisions of laws and regulations at the time of its acquisition. However, Article 66 (1) 12 attached Table 12 of the Enforcement Decree of the Building Act (the Enforcement Decree before wholly amended by Presidential Decree No. 13655 of May 30, 192) which was enforced at the time of the plaintiff's acquisition of the land of this case provides that "a building that can be constructed within a green-belt zone (limited to a apartment house and dormitory in a district designated and publicly announced by the head of a Si/Gun as being not detrimental to the preservation of green areas)" is "a building that can be constructed within a green-belt zone (limited to a apartment house and dormitory in a district designated and publicly announced by the head of a Si/Gun as above)" for the purpose of acquiring land of the plaintiff.

Nevertheless, it cannot be found that the land in this case is in a zone where apartment houses can be constructed as above in the records. Meanwhile, Article 4 (1) 3 of the Seoul Special Metropolitan City Comprehensive Land Use Guidelines (established Rules No. 458, Aug. 17, 1984) cited by the court below is prohibited from development activities in green-belt areas and natural green-belt areas, but it is excluded from cases where the head of the Gu grants permission for the installation of land, the category of land in the existing village, the purpose of which is a building site, and the prior approval of the Mayor for the implementation of social welfare and public projects. Article 7 (2) provides that the restriction may be mitigated in cases where the Mayor deems it necessary in the measures for the construction and removal of apartment houses in green-belt areas, and it is difficult to view that the above established rules have strengthened development activities more than the regulations of the Enforcement Decree of the Building Act, as determined by the court below with regard to the construction of apartment houses in green-belt areas. Thus, where apartment houses in the above green-belt areas are newly constructed, the land can not be designated and publicly announced by the Seoul Special Metropolitan City Mayor.

Therefore, the court below did not reject the defendant's assertion on the ground that it is difficult to view that the construction of a house, such as a tenement house, in a natural green area under the Building Act, or even according to the established rules of the above Seoul Metropolitan Government, was prohibited completely in the natural green area, but it should be tried individually and specifically in comparison with the relevant Acts and subordinate statutes at the time of the plaintiff's acquisition of the land in this case, and determined that the land in this case constitutes a case where the use of a house, which is the business purpose, is prohibited or restricted under the provisions of the Acts and subordinate statutes after its acquisition, has not been fully deliberated or has been committed. The part pointing this out in the grounds of appeal is with merit.

Therefore, the appeal of this case is with merit, and it is not necessary to examine other points, and the judgment of the court below is reversed and the case is remanded to the Seoul High Court which is the court below. It is so decided as per Disposition by the assent

Justices Park Jong-chul (Presiding Justice)