The case holding that even if it was impossible to construct a factory because there was no access road to farmland located in a medium industrial area in the urban planning zone and it was impossible to obtain a building permit, it cannot be viewed as a restriction under the Act and subordinate statutes, it constitutes idle land as stipulated in Article 8 (1) 5 (b) of the Land Excess Profit Tax Act.

Article 8 (1) 5 (b) of the Land Excess Profits Tax Act

E. H. H. H. H.

Head of Ansan Tax Office

The plaintiff's claim is dismissed.

Litigation costs shall be borne by the plaintiff.

The disposition of imposition of KRW 129,987.410 against the Plaintiff on November 5, 1991 by the Defendant shall be revoked.

Litigation costs shall be borne by the defendant.

1. Details of the imposition;

Pursuant to Article 8(1)5(b) of the Land Excess Profit Tax Act and Article 12(4) through (6) of the Enforcement Decree of the Enforcement Decree of the same Act, the Defendant is farmland located within the urban planning zone of the Special Metropolitan City, the Metropolitan City, the Metropolitan City, and the Si (the area designated as a residential area, a commercial area, or an industrial area under the Urban Planning Act) for not less than six months from the date of incorporation into the urban planning zone, and it does not constitute farmland for which one year has not passed since it was incorporated into the urban planning zone, and thus, it constitutes farmland subject to the above urban planning zone, and thus, it constitutes 2,128.5 square meters among 2,241 square meters and 965 square meters before 9-3,000, and 598.5 square meters (hereinafter referred to as the “land of this case”) of the same 915-3,000 square meters before December 31, 199; and thus, the Defendant is not able to dispute over the amount of KRW 197,20.10.

2. Whether the disposition is lawful;

In regard to the defendant's assertion that the disposition of this case is lawful on the grounds of the above disposition grounds and applicable provisions of law, the plaintiff, although the land of this case, which the plaintiff acquired on January 7, 1983 and possessed, was designated as an urban planning area and became an area for new construction of a factory, the plaintiff did not construct a new factory on the land of this case, and thus, the plaintiff could not obtain a construction permit because it did not have access to the land of this case during the above taxable period because it was impossible for the plaintiff to construct a new factory on the land of this case due to the lack of a new construction of a factory on the land of this case. Therefore, it cannot be viewed as a idle land pursuant to the provisions of paragraph (3) of the same Article, and even if the defendant did not regard the land of this case as a idle land, the disposition of this case is unlawful, and even though it is not so, since the 738 square meters of the land of this case cannot be subject to the land excess profit tax because it constitutes a planned road site and its use is prohibited or limited.

First of all, Article 8 (1) 5 of the Land Excess Profit Tax Act provides that "any farmland falling under any of the following items, paddy field, orchard, and orchard" shall be included in idle land, and Article 8 (1) 5 of the same Act provides that "the farmland which the owner has resided in the location of the farmland and cultivated by himself has not passed from the date of incorporation into the urban planning area of the Special Metropolitan City, Metropolitan City, or Si as prescribed by the Presidential Decree, shall be excluded pursuant to the Presidential Decree." Article 12 (4) of the Enforcement Decree of the same Act provides that "area prescribed by the Presidential Decree" means an area other than the area designated as a residential area, commercial area or industrial area under the Urban Planning Act, and Article 8 (1) 5 (b) of the Act provides that "any farmland which is cultivated by himself/herself and has resided in the location of the farmland under the conditions as prescribed by the Presidential Decree" shall be excluded from the date of incorporation into the urban planning area under the proviso of Article 8 (1) 6 (b) of the same Act.

Therefore, if the land owned by the plaintiff constitutes idle land as stipulated in Article 8 (1) 5 (b) of the Act, it shall be examined whether it constitutes an industrial area under Article 8 (1) 5 (b) of the Act, and whether it constitutes a land, the use of which is prohibited or limited under the provisions of the law after its acquisition, and as such, Gap evidence 5-1 through 7, Gap evidence 6-1 through 6, Gap evidence 7,8,9, Eul evidence 1 and 2, and the whole purport of oral argument, the land in this case is farmland within the area designated as an industrial area among the urban planning zones in the Special Metropolitan City, Metropolitan City, Metropolitan City, and Si areas at the time of the scheduled determination period, and the land in this case was designated as an industrial area on March 12, 1958, and the land in this case was designated as an area where the land in this case was not subject to the restriction of land use under Article 8 (1) 5 (b) of the Act, and the land in this case was not subject to the restriction of the above provision of the Act.

3. Conclusion

Thus, the plaintiff's claim seeking revocation on the ground of the illegality of the disposition of this case is dismissed as it is without merit, and the costs of lawsuit are assessed against the losing plaintiff. It is so decided as per Disposition.

Judges Yu Tae-tae (Presiding Judge)