Main Issues
[1] Whether a land under provisional attachment, provisional injunction, or pending lawsuit is land prohibited or restricted by the law (negative)
[2] Whether Article 11-2 and Article 12 of the Land Excess Profits Tax Act, which newly established the tax base and tax rate indicated as unconstitutional in the decision of the Constitutional Court, may be applied retroactively to the tax base and tax rate and the basic deduction in the calculation of the tax base (affirmative)
Summary of Judgment
[1] The reason that a provisional attachment or a provisional disposition is taken against land or that a lawsuit seeking ownership transfer registration is pending on the ground of donation does not constitute a case where the use is prohibited due to the statutory provisions of Article 8(3) of the Land Excess Acquisition Tax Act.
[2] On July 29, 1994, the Constitutional Court rendered a decision that the former Land Excess Profit Tax Act does not conform with the Constitution in the case of 92HunBa49,52 (merged). Accordingly, the National Assembly amended the above tax rate clause which is deemed unconstitutional in the decision of inconsistency with the Constitution by Act No. 4807, Dec. 22, 1994 (Article 12), and newly enacted the provision of the basic deduction that deducts 2,00,000 won from the land excess profit during the pertinent taxable period when calculating the tax base (Article 11-2). The above amended provision applies retroactively to this case like the pertinent case.
[Reference Provisions]
[1] Article 8 (3) of the Land Excess Profits Tax Act / [2] Articles 11-2 and 12 of the Land Excess Profits Tax Act
Reference Cases
[1] Supreme Court Decision 93Nu17591 delivered on March 25, 1994 (Gong1994Sang, 1367), Supreme Court Decision 95Nu233 delivered on January 23, 1996 (Gong1996Sang, 688), Supreme Court Decision 93Nu1791 delivered on January 26, 1996 (Gong1996Sang, 814) / [2] Supreme Court Decision 94Da20402 delivered on July 28, 1995 (Gong195Ha, 2963), Supreme Court Decision 93Nu7051 delivered on October 13, 1995 (Gong195Ha, 3818), Supreme Court Decision 195Nu29399 delivered on October 13, 1995 (Gong195Ha294 delivered on September 13, 1995).
Plaintiff, Appellant
[Judgment of the court below]
Defendant, Appellee
The Director of Gangnam District Office
Judgment of the lower court
Seoul High Court Decision 92Gu19363 delivered on December 4, 1992
Text
The judgment below is reversed and the case is remanded to Seoul High Court.
Reasons
1. We examine the grounds of appeal.
A. Judgment on ground of appeal No. 1
The court below's decision is justified in holding that the ground that a provisional attachment or a provisional disposition is taken against the land or that a lawsuit claiming ownership transfer registration is pending on the ground of donation does not fall under the case of prohibition of use due to the statutory provisions under Article 8 (3) of the Land Excess Profits Tax Act, and there is no error of law in the misapprehension of legal principles as discussed. There is no reason to discuss.
B. Judgment on ground of appeal No. 2
The issue can not be a legitimate ground for appeal on the premise that the decision of the court below was not asserted in the court below, because it merely criticizes that there was an error in violation of the rules of evidence against the taxpayer. There is no reason for the issue.
2. However, ex officio, the Constitutional Court decided on July 29, 1994 that the former Land Excess Profit Tax Act shall not conform with the Constitution in the case of 92HunBa49, 52 (merged). Accordingly, the National Assembly revised the tax rate provisions pointed out as unconstitutional by Act No. 4807, Dec. 22, 1994 (Article 12 of the Act) and newly enacted the basic deduction provision that deducts 2,00,000 won from the land excess profit in the pertinent taxable period when calculating the tax base (Article 11-2 of the Act). The above amendment provision applies retroactively to this case like the pertinent case. Accordingly, the judgment of the court below is erroneous by misapprehending the tax base and tax rate and adversely affecting the judgment.
3. Therefore, the lower judgment is reversed ex officio, 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.
Justices Jeong Jong-ho (Presiding Justice)