Busan High Court Decision 2006Nu3780 (No. 18, 2007)

National High Court Decision 2005Da2859 (No. 12, 2006)

Change of land use means the change of the actual state of use, not the change of a specific use area.

“Change of use of land” means a change of actual use of land, which is not a change of a specific use area, but a standard for classification of land categories under the intellectual law, and as long as there is a change in land use situation, it is not different depending on whether such change was due to the form and quality of the land itself or due to the change of use of the building

The contents of the decision shall be the same as attached.

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

쇠鹬 쇠鹬 3000 쇠鹬 3000

The grounds of appeal are examined.

1. Article 99 (1) 1 (a) of the former Income Tax Act (amended by Act No. 7335 of Jan. 14, 2005; hereinafter referred to as the "Act") provides that the standard market price of the land shall be the officially assessed individual land price under the Act on the Public Announcement of Land Prices and Evaluation of Land, etc.: Provided, That the price of the land without such officially assessed individual land price shall be the amount appraised by the method as determined by the Presidential Decree in consideration of the officially assessed individual land price of neighboring similar land in the vicinity of the place of tax payment, and Article 164 (1) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 18705 of Feb. 19, 2005; hereinafter referred to as the "Enforcement Decree") provides that "the amount appraised by the method as determined by the Presidential Decree" under the proviso to Article 99 (1) 1 (a) of the Act refers to the price of the land which has no officially assessed individual land price falling under any of the following subparagraphs and its change in use.

In light of the language and purport of the above provision, in particular, Article 9(1)1 (a) of the Act delegates the method of assessing the value of the land without a publicly assessed individual land price to the Enforcement Decree for the assessment of the value of the land without a publicly assessed individual land price, and if a publicly assessed individual land price is publicly announced, it cannot be deemed that the land is no publicly assessed individual land price for the mere reason that the land category has been changed under the cadastral law, etc., "land without a publicly announced individual land price" as referred to in Article 99(1)1 (a) of the Act and Article 164(1)3 of the Enforcement Decree of the Act refers to a land in a case where, even if a publicly notified individual land price for the land before a land category has been publicly announced, there is a difference in the characteristic of the land which serves as the basic material for calculating the publicly

Meanwhile, Article 2 subparagraph 7 of the Cadastral Act provides that "land category means a registration by classifying the kinds of land according to the main purpose of the land and in the cadastral record." Thus, the main purpose of the land category-related land under the Cadastral Act refers to the actual state of use of the land which is the cause of the land category classification, and it does not necessarily involve a change of land category under the intellectual law due to the change of various specific-use district, specific-use district, specific-use district, and specific-use district (hereinafter "specific-use district, etc.") as provided by the National Land Planning and Utilization Act, "the change of use of land" under Article 164 (1) 3 of the Enforcement Decree does not simply mean a change of specific-use area under the National Land Planning Act, but it does not change the actual state of use of the land, which is the basis of land classification under the Cadastral Act, due to the change of land utilization situation (see Supreme Court Decision 200Du31379, Apr. 23, 2009; 2007Du31317.

According to the facts acknowledged by the court below, since the land category of this case was changed from the miscellaneous land to the site after a gas station has been constructed on the ground, the land category of this case was changed from the miscellaneous land to the site. In light of the above legal principles, this case constitutes a land without officially assessed land price as a "land whose land category under the Cadastral Act has changed due to the change of use of land under Article 164 (1) 3 of the Enforcement Decree." On the other hand, the court below determined that this case's land category was changed due to the change of use of the building, and it does not constitute "land without individually announced land price" on the ground that the use of the land of this case is not changed due to the change of use of the building, which is not a "land with no officially announced land price". In so determining, the court below erred by interpreting and applying the proviso to Article 99 (1) 1 (a) of the Act

2. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.