[1] Whether land acquired as a result of reclamation of public waters is subject to the aggregate land tax (affirmative)

[2] Where permission for use is obtained prior to authorization of completion of reclamation work of public waters, the actual owner of the aggregate land tax liability (=the date of permission for use)

[3] Whether Article 10 of the Public Notice of Values and Appraisal of Lands, etc. Act prohibits the State and local governments from calculating their land prices for purposes other than those stipulated in each subparagraph of paragraph (1) of the same Article (negative)

[1] Article 234-8 of the Local Tax Act provides that "the land subject to the aggregate land tax shall be all the land subject to taxation, but there is no restriction on the subject, so the land subject to the original acquisition due to the reclamation of public waters shall be subject to the aggregate land tax regardless of whether it is registered in the cadastral record if the original acquisition date arrives

[2] Article 234-9(1) of the Local Tax Act provides that a person liable to pay the aggregate land tax shall be a person who actually owns the land as of the tax base date for aggregate land tax, and as such, Article 73 of the Enforcement Decree of the same Act concerning the time of acquisition is not separately provided for the time of acquisition that is the de facto owner. Therefore, the above legal principle does not change from the time of original acquisition due to reclamation of public waters, and therefore, if a person obtains permission for use prior to the completion of reclamation works of public waters, it shall be deemed the time of acquisition that is the de facto owner

[3] According to Article 10 of the Public Notice of Values and Appraisal of Lands, etc. Act, where the State, local government, etc. calculates land price for the purpose of each subparagraph of paragraph (1), the above provision does not purport to prohibit the calculation of land price under the above provision for purposes other than those provided by the Minister of Construction and Transportation under the above provision.

[1] Article 234-8 of the Local Tax Act / [2] Article 234-9 (1) of the Local Tax Act, the proviso to Article 73 (10) of the Enforcement Decree of the Local Tax Act / [3] Article 10 of the Public Notice of Values and Appraisal of Lands, etc. Act, Article 234-15 (5) of the Local Tax Act

[2] Supreme Court Decision 94Nu13831 delivered on May 23, 1995 (Gong1995Ha, 2291)

Korean Ship Agency Repair Industry Cooperatives (Attorney Kim Yong-won, Counsel for the plaintiff-appellant)

The head of the Gu of the Busan Metropolitan City

Busan High Court Decision 98Nu1413 delivered on July 29, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. As to grounds of appeal Nos. 1 and 2

Article 234-8 of the Local Tax Act (amended by Act No. 5406, Aug. 30, 1997; hereinafter the same) provides that the subject of the aggregate land tax shall be all land subject to taxation, and since there is no restriction on the subject of the aggregate land tax, the land which is originally acquired through the reclamation of public waters shall be subject to taxation of the aggregate land tax, regardless of whether it is registered in the cadastral record, if the original acquisition time as seen below arrives.

Meanwhile, Article 234-9(1) of the same Act provides that a person liable to pay the aggregate land tax shall be a person who actually owns the land as of the assessment basis date of the aggregate land tax, and as such, Article 73 of the Enforcement Decree of the same Act concerning the time of acquisition shall apply mutatis mutandis to the time of acquisition (see Supreme Court Decision 94Nu13831, May 23, 1995). Since this legal principle is not a different ground for deeming otherwise to be the case of original acquisition due to reclamation of public waters, if a person has obtained permission for use prior to the authorization of completion of reclamation works of public waters such as the land in this case, it shall be deemed the time of acquisition that is the actual owner of the date of permission pursuant to the proviso

As determined by the court below, if the plaintiff obtained permission to use the land of this case on May 16, 1996, the land of this case as of June 1, 1996, which is the tax base date, shall be subject to the aggregate land tax, and the plaintiff shall be a de facto owner who is liable to pay the aggregate land tax. Therefore, the decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground for

2. As to grounds of appeal Nos. 3 and 4

According to Article 10 of the Public Notice of Values and Appraisal of Lands, etc. Act, where the State, local government, etc. calculates the land price for the purposes under each subparagraph of paragraph (1), the court below determined that the land price should be calculated by using the land price ratification table provided by the Minister of Construction and Transportation under the above provision, and that the land price under the above provision is not prohibited for purposes other than those under each of the above subparagraphs. Thus, in calculating the price of the land of this case without the officially assessed individual land price, the court below held that the defendant calculated the price of the land of this case by using the land price comparison table provided by the Public Notice of Values and Appraisal of Lands, etc. Act (amended by Presidential Decree No. 15835, Jul. 16, 1998) and Article 194-16 of the Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15835, Jul. 16, 198) of the officially assessed land price of this case, the court below did not err in the misapprehension of legal principles or in the grounds for appeal.

3. As to the fifth ground for appeal

The instant land is a real estate for business cooperation with small and medium enterprises and is subject to reduction of 50/100 of the aggregate land tax stipulated in Article 280(1) and (2) of the Local Tax Act, and the instant land is not a legitimate ground for appeal for the first time in the trial. Moreover, there is no data to regard the instant land as a real estate subject to reduction and exemption under the above Local Tax Act as of the tax base date, and thus,

4. Regarding ground of appeal No. 6

The argument in the grounds of appeal is that the Plaintiff’s imposition of aggregate land tax on the instant land before the completion date of reclamation works is unlawful in light of the Plaintiff’s public interest nature, even though it is a non-profit corporation established under the Small and Medium Enterprise Cooperatives Act and not directly subject to non-taxation as prescribed in Article 234-11 and 12 of the Local Tax Act. However, it is obvious that it is not acceptable in light

5. Therefore, the appeal is dismissed and all 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 Jong-chul (Presiding Justice)