Where a corporation sells land acquired for housing construction within a four-year grace period, whether it is excluded from non-business land (negative) where it is sold pursuant to Article 84-4 (4) 16 of the former Enforcement Decree of the Local Tax Act and Article 46-9 (4) of the Enforcement Rule of the same Act (negative)

Article 112 (1) and (2) of the former Local Tax Act (amended by Act No. 5615 of Dec. 31, 1998), Article 84-4 (1), (4) 10 and 16 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15835 of Jul. 16, 1998), and Article 46-9 (4) of the former Enforcement Rule of the Local Tax Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 11 of Jul. 23, 1998), particularly Article 84-4 (4) 10 of the former Enforcement Decree of the Local Tax Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs of Jul. 23, 1998), so long as a corporation fails to use the land acquired for housing construction for a period of four years, the land cannot be excluded from non-business purposes even if it sold the land.

Article 112 (1) and (2) of the former Local Tax Act (Amended by Act No. 5615, Dec. 31, 1998); Article 84-4 (1), (4) 10, and 16 of the former Enforcement Decree of the Local Tax Act (Amended by Presidential Decree No. 15835, Jul. 16, 1998); Article 46-9 subparagraph 4 (current deleted) of the former Enforcement Rule of the Local Tax Act (Amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 11, Jul. 23, 1998);

Co., Ltd. and one other (Attorneys Jeong Sung-sung et al., Counsel for the defendant-appellant)

The head of Mapo-gu Seoul Metropolitan Government

Seoul High Court Decision 2000Nu2602 delivered on September 27, 2000

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. On the first and second grounds for appeal

In light of Article 112 (1) and (2) of the former Local Tax Act (amended by Act No. 5615 of Dec. 31, 1998), Article 84-4 (1), (4) 10 and 16 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15835 of Jul. 16, 1998), Article 46-9 subparagraph 4 of the former Enforcement Rule of the Local Tax Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 11 of Jul. 23, 1998; hereinafter referred to as the "Enforcement Rule of the Local Tax Act"), and Article 84-4 (4) 10 of the Enforcement Decree of the Local Tax Act (amended by Act No. 5615 of Dec. 31, 199), as long as a corporation fails to use the land acquired for housing construction for a four-year grace period, the land cannot be sold from non-business purposes.

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning, and determined that the purchase decision (successful bidder) of this case by Korea Land Corporation is merely an internal decision-making, and it does not constitute sale under Article 46-9 subparagraph 4 of the Enforcement Rule, and the plaintiffs sold this case's land after four years from the acquisition of this case's land, so the land of this case can not be excluded from non-business land pursuant to Article 84-4 subparagraph 16 of the Enforcement Decree and Article 46-9 subparagraph 4

In light of the above legal principles and records, the above fact-finding and decision of the court below is just, and there is no error of law as otherwise alleged in the ground of appeal.

2. On the third ground for appeal

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its holding, and determined that the plaintiffs cannot be deemed to have justifiable grounds for not having used the land of this case for its unique duties within the grace period, in light of the following: (a) the plaintiffs, after acquiring the land of this case on May 31, 1994, suspended the housing construction project at the stage of review of feasibility, without making any specific effort to use the land of this case for its unique duties; and (b) the decision to waive the housing construction project of this case and set the policy to sell the land of this case was made on May 20, 198; and (c) the sales contract was not concluded until the grace period expires after filing an application for sale

In light of the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to justifiable grounds as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Park Jae- Jae (Presiding Justice)