[1] The scope of application of the provisions of the Land Excess Profit Tax Act amended by the decision of inconsistency with the Constitution

[2] In a case where the prohibition or restriction is cancelled within three years from the date when the use of the idle land, which is the period excluded from the idle land under Article 23 subparagraph 1 of the former Enforcement Decree of the Land Excess Profit Tax Act, is cancelled, the period excluded from the idle land (three years)

[3] Whether the basic deduction can be made for each co-owner when calculating the tax base of the land excess profit tax on co-owned land (negative)

[1] The Land Excess Profit Tax Act and the Enforcement Decree of the same Act and the Enforcement Rule of the same Act, as amended by the Constitutional Court's decision on July 29, 1994 on the non-conforming decision of the Constitutional Court of Korea, were to remove or improve the unconstitutional elements pointed out in the above decision, so the amended provisions shall apply to the pertinent case, etc., unless they are applied disadvantageous to taxpayers.

[2] Under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted as the text of the law, barring special circumstances, and it shall not be extensively interpreted or analogically interpreted without reasonable grounds. The main text of Article 23 subparagraph 1 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994) provides that "where the use of land is prohibited or restricted by the Acts and subordinate statutes after acquiring the land, for three years from the date on which the use is prohibited or restricted by the Acts and subordinate statutes" shall not be regarded as "for three years from the date on which the use is prohibited or restricted by the Acts and subordinate statutes," and the above provision does not provide for a separate provision as to cases where the restriction, etc. is revoked, the period only until the time of cancellation shall be excluded from the idle land. Thus, even if the restriction, etc. is revoked within three years from the date

[3] In light of the purport of the Land Excess Gains Tax Act and the provisions of Articles 11(1) and 11-2(1) of the same Act, when calculating the tax base of the land excess profit tax on the co-owned land, the basic deduction under Article 11-2 of the same Act can only be made once from the land excess profit tax on the co-owned land, on the ground that there are many co-owners co-ownership of the land.

[1] Article 8(3) of the Land Excess Profit Tax Act; Article 23 subparag. 4 of the Enforcement Decree of the Land Excess Profit Tax Act / [2] Article 8(3) of the Land Excess Profit Tax Act; Article 23 subparag. 1 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994); Article 23 subparag. 1 of the former Enforcement Decree of the Land Excess Profit Tax Act; Article 23 subparag. 1 of the Enforcement Decree of the Land Excess Profit Tax Act; Article 23 subparag. 3 of the Addenda (amended by Presidential Decree No. 14470 of Dec. 31, 199) / [3] Articles 1

[1] Supreme Court Decision 92Hun-Ba49, 52 delivered on July 29, 1994 (Hun-Ba7, 505), Supreme Court Decision 93Nu1791 delivered on January 26, 1996 (Gong1996Sang, 814), Supreme Court Decision 93Nu10491 delivered on April 23, 1996 (Gong1996Sang, 1625), Supreme Court Decision 93Nu12893 delivered on April 26, 1996 (Gong196Sang, 17133 delivered on July 30, 196) (Gong196Ha, 2718) / [3] Supreme Court Decision 93Nu19639 delivered on July 29, 196 (Gong1996Ha, 27189)

Cho Byung-z. et al.

Director of the District Office

Seoul High Court Decision 94Gu21483 delivered on May 10, 1996

The judgment below is reversed and the case is remanded to Seoul High Court.

1. We examine the plaintiffs' grounds of appeal.

A. As to the second ground for appeal

The amended provisions of the Land Excess Profit Tax Act (hereinafter referred to as the "Land Excess Profit Tax Act") and the Enforcement Decree thereof, and the Enforcement Rule thereof are all applicable to the pertinent case, etc., unless it is applied disadvantageous to the taxpayer, since the Constitutional Court removed unconstitutional elements pointed out in the decision of inconsistency with the Constitution of the Republic of Korea on July 29, 1994, or revised for the purpose of improvement (merged). (See Supreme Court Decision 93Nu17911 delivered on January 26, 1996).

Article 23 subparag. 4 of the Enforcement Decree of the Saturdays Tax Act (amended by Presidential Decree No. 14470, Dec. 31, 1994; hereinafter referred to as the “former Enforcement Decree”) provides that “where a group of housing site creation projects under the Urban Planning Act, the Urban Redevelopment Act, the Land Readjustment Projects Act, and other relevant Acts and subordinate statutes prescribed by the Ordinance of the Prime Minister after the acquisition of land, are incorporated into a development project district as prescribed by the Ordinance of the Prime Minister, the period from the date of designation as the project execution district to the date of actual completion of a unit of subdivision shall not be regarded as idle land,” so, “the period from the date of actual completion of a project in a unit of subdivision shall not be regarded as the idle land, as determined by the court below, since the land of this case was divided into the same land of this case as the site of this case, and even if the site of this 931-15 square meters was incorporated into a national expressway expansion construction site, it cannot be seen that the above land was incorporated within the development project district, and therefore excluded.

The lower court’s application of Article 23 subparag. 4 of the Enforcement Decree of the Land Tax Act prior to the amendment (hereinafter “former Enforcement Decree”) is justifiable in its conclusion that the application of Article 23 subparag. 4 of the former Enforcement Decree of the Land Tax Act is erroneous or it is not a case where the land of this case is incorporated within the development project area,

B. Ground of appeal No. 1

According to the reasoning of the judgment below, the court below recognized the fact that the plaintiffs acquired shares of the land of this case on December 7, 197, and thereafter, the land of this case became an urban planning facility (green) designated on March 29, 198, and the designation was cancelled on June 4, 1991, and the defendant, during the period from January 1, 1990 to December 31, 192, from the cancellation of the designation of the above urban planning facility during the period from January 1, 1990, to December 31, 1992, on the ground that the first share of the land of this case falls under idle land and imposes the land excess profit tax on the plaintiffs, and determined that the land excess profit tax is excluded from the idle land of this case until the end of the taxable period from the cancellation of the designation.

However, in light of the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring special circumstances. It shall not be extensively interpreted or analogically interpreted without reasonable grounds. The main text of Article 23 subparagraph 1 of the former Enforcement Decree does not provide for "for three years from the date on which the use of the land is prohibited or restricted by the law after the acquisition of the land" in the case of cancellation of the restriction, and there is no reasonable ground to regard only the period until the cancellation of the restriction as excluding the idle land in the case of cancellation of the restriction despite the above provision. Thus, even if the restriction is cancelled within three years from the date of prohibition or restriction, it shall be excluded from the idle land for three years from the date on which the plaintiffs acquired the first share of the land of this case, and the use of the land of this case is restricted after the acquisition of each share of the land of this case, and the use of the remaining land of this case shall not be applied to the case of cancellation of the restriction under Article 13 (3) of the former Enforcement Decree.

Nevertheless, the court below held that when the designation of urban planning facilities was cancelled within three years from the date on which the use was prohibited or restricted by the Act and subordinate statutes under Article 23 subparagraph 1 of the former Enforcement Decree, the portion of the land in this case is excluded from idle land only until the date on which the designation of urban planning facilities was cancelled. Thus, the court below erred in the misapprehension of legal principles as to the period not regarded as idle land under the Enforcement Decree of the former Enforcement Decree, and there is a clear ground to point this out.

2. We examine the grounds of appeal by Defendant Litigation Performers

In light of the purport of the provisions of the Land Tax Act and the provisions of Articles 11(1) and 11-2(1) of the Land Tax Act, in calculating the tax base of the land excess profit tax for co-owned land due to the increase in land price of idle land due to various development projects and other social and economic factors, only one basic deduction under Article 11-2 of the same Act can be made from the land excess profit tax for the land of one parcel only once, and the basic deduction for each co-owner shall not be allowed on the basis that there are many co-owner co-ownership of the land (see Supreme Court Decisions 96Nu3890 delivered on July 9, 196, 96Nu7199 delivered on September 20, 196).

Nevertheless, the court below divided the excess gains of the land of this case as one parcel by the plaintiffs' shares, and calculated each tax base by making one-time basic deductions. Thus, the court below erred in the misapprehension of legal principles as to the basic deduction, and it is obvious that such illegality has affected the conclusion of the judgment, and therefore, there is a reason to point this out.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)