Where a school facility project operator transfers land within the execution site to the school facilities project operator before approval and public notice of the school facilities project execution plan is given, whether capital gains tax or special surtax is exempted (negative)

In the case of expropriation under the Land Expropriation Act, the land, etc. within the execution site shall not be regarded as expropriation in case the school facilities project executor acquires the land, etc. within the execution site prior to the approval and public notice of the project approval under the provisions of Articles 14 and 16 of the Land Expropriation Act under the provisions of Article 10 of the Land Expropriation Act. Accordingly, the transfer income accruing to the land owner shall not be subject to exemption from the transfer income tax or special surtax because the land expropriation under the provisions of Article 57 (1) 2 of the Land Expropriation Act and other Acts under the Land Expropriation Act (amended by Act No. 4165 of Dec. 30, 1989) do not fall under the income accrued from the expropriation under the provisions of Article 57 (1) 2 of the Land Expropriation Act and other Acts.

Article 14 of the Land Expropriation Act, Articles 4 and 10 of the School Facilities Projects Promotion Act, Article 57(1) of the former Regulation on Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989)

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellee)

Gabs

Head of the Do Tax Office

Seoul High Court Decision 89Gu13068 delivered on June 28, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the Plaintiff’s ground of appeal.

In the case of expropriation under the Land Expropriation Act, the project approval under Article 14 of the same Act is the first stage of commencing the land expropriation procedure, and the public collection right for the land in the land in the corporate place is established by the project approval, and public project operators acquire the ownership of the land through consultation or adjudication expropriation procedure, so it is impossible to expropriate or expropriate the land before the project approval is obtained (see Supreme Court Decision 83Nu324 delivered on September 27, 1983). According to the provisions of Article 10 of the School Facilities Projects Promotion Act, the school facilities project operator may expropriate or use the land or buildings in the execution site for the school facilities project, and in this case, the approval and public notice of the execution plan for the school facilities project under Articles 4(1) and (6) of the Land Expropriation Act shall be deemed to be the project approval and public notice under Articles 14 and 16 of the Land Expropriation Act, so it is not possible to view that the land has been acquired by the project operator prior to the approval of the execution plan for the school facilities project, and therefore, the land owner is not subject to be exempted from the capital gains tax exemption (Article 2516.

According to the reasoning of the judgment below, after the plaintiff entered into a contract to sell the forest of this case with the Private Teaching Institute on February 3, 1987, on April 25, 1987, the court below determined that the Jeonnam-do Education Committee approved the school facility business plan of the above school foundation and publicly notified the plan, and even if the above school facilities committee entered the detailed items of the land to be expropriated in accordance with Article 4 (5) of the School Facilities Projects Promotion Act before the approval, it cannot be viewed as the public notice of approval of the execution plan under Article 4 (6) of the same Act, so the transfer income of the forest of this case does not fall under the object of exemption from the transfer income tax under Article 57 (1) 2 of the Regulation of Tax Reduction and Exemption Act. In light of the records, the above fact-finding and decision of the court below is just and there is no error of law as to the interpretation of the law, and it is not justified.

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.