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서울고등법원 2012. 03. 30. 선고 2011누31408 판결

토지 취득 후 법령에 따라 사용이 금지 또는 제한된 토지에 해당함[국패]

Case Number of the immediately preceding lawsuit

Seoul Administrative Court 2010Gudan24442 ( August 17, 2011)

Case Number of the previous trial

Seocho 2010west 1334 (2010.03)

Title

land, the use of which is prohibited or restricted by statutes after acquisition of the land;

Summary

The restrictions under the urban planning prior to the acquisition of land were to comply with certain standards when the construction was not prohibited, and since urban planning was changed after the acquisition of land, it was not possible to build a new building, it constitutes "land, the use of which is prohibited or restricted under the statutes after the acquisition of land," and is excluded from non-business land.

Related statutes

Article 104-3 of the Income Tax Act

Article 168-14 of the Enforcement Decree of the Income Tax Act

Cases

2011Nu31408 Revocation of Disposition of Imposing capital gains tax

Plaintiff and appellant

The two AA

Defendant, Appellant

Head of Yeongdeungpo Tax Office

Judgment of the first instance court

Seoul Administrative Court Decision 2010Gudan24442 decided August 17, 2011

Conclusion of Pleadings

March 9, 2012

Imposition of Judgment

March 30, 2012

Text

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1. Purport of claim

The Defendant’s imposition of capital gains tax of KRW 000 against the Plaintiff on March 1, 2010 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Quotation of judgment of the first instance;

The reasons for this decision are as follows: Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, since the reasons for this decision are the same as the judgment of the first instance except for the dismissal as set forth in the following subparagraphs:

2. Parts in height:

A. Article 2-1(a) of the Reasons for the Judgment of the court of first instance (“Party’s assertion”).

1) The plaintiff's assertion

After the Plaintiff acquired the instant land, a park planning was newly established on April 7, 1976 under the Seoul Urban Planning Act, and thereafter, on February 12, 1980, the instant land was incorporated into a park site due to the alteration of the Seoul Urban Planning Act, and thus making it impossible to construct and expand the instant general buildings on the instant land. Accordingly, the instant land does not constitute a non-business land pursuant to Article 104-3 (2) of the Income Tax Act (amended by Act No. 10221, Mar. 31, 2010; hereinafter the same shall apply), Article 168-14 (1) 1 of the Enforcement Decree of the Income Tax Act, even if not, it does not fall under such non-business land.

2) The defendant's assertion

At the time of the Plaintiff’s acquisition of the instant land, there was a restriction on the construction act, etc. due to the relationship in which the instant land was designated as a redevelopment area and a specific house improvement district under the Seoul Urban Planning Act (No. 367, Sept. 6, 1973). Since the Plaintiff’s assertion was merely coordinating and combining some areas on the premise of the existing plan, the alteration of the urban planning after the Plaintiff’s acquisition of the instant land is merely a mere adjustment and merger of some areas. Accordingly, it cannot be deemed that the use of the instant land was prohibited or restricted due to changes

B. The reasoning of the judgment of the court of first instance is as follows: D. 2-D.

1) Issues of the instant case

As can be seen by the parties' arguments, the primary issue of this case is whether the land in this case falls under "land, the use of which is prohibited or restricted by the laws and regulations after the acquisition of the land" under Article 104-3 (2) of the Income Tax Act and Article 168-14 (1) 1 of the Enforcement Decree of the Income Tax Act and it is important to interpret the meaning of prohibition or restriction of the use of the land.

2) Interpretation of the meaning of prohibition or restriction of land use

The legislative intent of applying the heavy taxation rate to capital gains on non-business land pursuant to Articles 104 (1) 8 and 104-3 of the Income Tax Act is to reduce speculative demand of real estate by using land as a means of property increase without using it for a productive purpose according to its actual demand, and to thoroughly recover profits from speculation, thereby promoting stability and taxation balance in the real estate market. Article 104-3 (2) of the Income Tax Act provides that where a specific land falls under any subparagraph of Article 104-3 (1) of the Income Tax Act which restricted the cases where it falls under a specific land for non-business, it is deemed that the purpose of the provision is to prevent harm caused by the mechanical application of the relevant provisions and to provide concrete feasibility. In addition, if it is deemed that the Plaintiff is unable to acquire the land for business prior to the acquisition of the land, the meaning of "the prohibition or restriction of the use after the acquisition of the land pursuant to the relevant Acts and subordinate statutes" should be examined as follows, regardless of the contents or type of the prohibition or provision.

3) Contents of prohibition or restriction of use of the instant land under the Seoul Urban Planning Act, September 6, 1973

As seen in the above facts, Article 19 of the Urban Planning Act (amended by Act No. 2988, Dec. 31, 1976; hereinafter the same) provides that the land in this case was designated as a redevelopment area and a specific household maintenance district under the Seoul Urban Planning Act (amended by Act No. 2852, Dec. 31, 1973; hereinafter the same) shall be subject to the provisions of the Building Act and other Acts, except as otherwise provided in this Act. Article 33-2 (1) of the Building Act (amended by Act No. 2852, Dec. 31, 1975; hereinafter the same) provides that "any building in a maintenance district of a specific household shall not be subject to the restriction on height, size, size and size of the wall of a building determined by the relevant laws, urban planning or building plan, etc., but shall not be subject to the restriction on height and size of the wall of the building in this case."

4) The cause and time of occurrence that the Plaintiff was unable to provide the instant land to the business

As seen above, the Plaintiff, while purchasing the instant building along with the instant building and operating a restaurant around April 1983, intended to newly construct the instant building after removing it. However, since the instant land was incorporated as a park site, it is inevitable to construct a new building other than the building that meets the purpose of the park, the instant land was used for the business of operating a parking lot. On April 192, and on June 2007, the construction of the instant land was allowed conditionally around 84 square meters on the instant land. Considering these facts, the Plaintiff’s ground that it was inevitable for the Plaintiff to use the instant land for the purpose of an off-road parking lot (i.e., the Plaintiff’s land for the business of operating a parking lot, which was not recognized as the land for the business of operating a new parking lot, was not limited to 3% of the annual revenue of the instant land (i.e., the Plaintiff’s new building that could not be recognized as the land for the business of operating a new parking lot). This appears to have been considerably more than that of the Seoul Building site after its new construction.

5) Sub-committee

In full view of the above interpretation and circumstances, this case’s land constitutes “land which is prohibited or restricted by the law after acquiring the land” under Article 168-14(1)1 of the Enforcement Decree of the Income Tax Act (Therefore, since the land of this case is considered to have been provided for business from February 12, 1980 to June 2, 2007 when the construction of the building is conditionally permitted, it does not constitute “non-business land” after failing to meet the requirements for the period of the non-business land under Article 168-6 of the Enforcement Decree of the Income Tax Act). Therefore, the disposition of this case on a different premise is unlawful.

6) Additional determination

Unlike the above interpretation, even if the meaning of "the use of the land is prohibited or restricted by the law after the acquisition of the land," as referred to in Article 168-14 (1) 1 of the Enforcement Decree of the Income Tax Act, is interpreted as not falling under this provision if there is any restriction on the land regardless of the contents at the time of the acquisition of the land, it can be said that the land in this case constitutes "the land that is not used for the business due to justifiable reasons, such as the alteration of the urban planning after the acquisition of the land concerned," and Article 83-5 (1) 12 of the Enforcement Rule of the Income Tax Act, so there is no change in the conclusion that the land in this case does not fall under non-business.

3. Conclusion

If so, the plaintiff's claim of this case should be accepted for the reasons, and the judgment of the court of first instance is just with this conclusion, and the defendant's appeal is dismissed as it is without merit.