2. On February 25, 2015, the Defendant’s rejection disposition of correction of KRW 14,105,972 against the Plaintiff is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

A. On April 23, 1990, the Plaintiff purchased the answer 523 square meters in Seongbuk-gu, Daejeon ( Address 1 omitted) and merged ( Address 2 omitted) with the answer 67 square meters in the adjoining farmland on August 7, 2003.

On August 1, 2013, the amount of 104 square meters in Seosung-gu, Daejeon ( Address 1 omitted) was divided into 104 square meters among them on August 1, 2013, and only 486 square meters remain (hereinafter “instant land”). The Plaintiff, on September 5, 2014, completed the registration of transfer of ownership with respect to the instant land on the ground of sale to Busan P&C Co., Ltd on September 1, 2014 (Transaction 305,812,000 won).

B. (1) On September 26, 2014, the Plaintiff reported the transfer income tax by calculating the tax amount reduced or exempted as KRW 29,858,108 by applying the standard market price of the “28 December 28, 2011,” which is the date the instant land was incorporated into a residential area, etc. to the Defendant.

B. On December 31, 2014, the Plaintiff calculated the tax amount reduced or exempted by applying the standard market price of the “64,080,” which was the date of the designation of the land scheduled for substitution as to the instant land, to the Defendant on December 31, 2014, and filed a request for correction to refund the excess capital gains tax amounting to KRW 14,105,972 (=43,964,080 - 29,858,108).

C. On February 25, 2015, the Defendant rendered a refusal disposition (hereinafter “instant disposition”) against the Plaintiff to the effect that “the first declaration is deemed reasonable and the Plaintiff’s request for correction is not adopted” (hereinafter “instant disposition”).

D. On April 15, 2015, the Plaintiff applied for a trial to the Tax Tribunal, but was dismissed on November 10, 2015.

【Ground for recognition】 Evidence Nos. 1 through 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

As the instant land was designated as a planned land substitution pursuant to the Special Act on the Promotion of Special Research and Development Zones as one of at least eight years (hereinafter “Special Act on Special Research and Development Zones”) and was transferred within three years from the date of such designation, the “standard market price on the date of obtaining the designation of the planned land substitution” in calculating income in accordance with the proviso of Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015; hereinafter “former Restriction of Special Taxation Act”) shall apply to the case where the land, other than farmland, was designated as a planned land substitution before a replotting disposition is taken pursuant to the Urban Development Act or other Acts. Nevertheless, the Defendant’s disposition in this case is unlawful since it is reasonable to apply the standard market price on the date of being incorporated into a residential area, etc. under the National Land Planning and Utilization Act (hereinafter “resident, etc.”).

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) On July 21, 2009, the Secretary of the Future Creation Department announced the development plan for the 2-level ○○ District of Taeduk Special Research and Development Zone as follows in accordance with the Special Act on Special Research and Development Zone:

· Name of the project: Stage 2 Special Research and Development Zone 00

· Business Location: Daejeon Pream-gu ( Address 5 omitted) Mangwon

· Project designators: Government (Minister of Science, ICT and Future Planning)

· Project implementer: ○ District Development Project Association

· Method of promotion: Replotting by landowners

· Development area: 298,137 square meters (including the land of this case)

Doz. ○ District Development Project Association was authorized on November 5, 2009.

On December 28, 2011, Article 27(1) of the Special Act on Special Research and Development Zones, the Daejeon Metropolitan City Mayor approved the implementation plan for the development project at the second stage of Taeduk Special Research and Development Zone (○○ District). Accordingly, the land in this case was incorporated into the Daejeon Metropolitan City Industrial Area.

· Business Location: Daejeon Pream-gu ( Address 5 omitted) Mangwon

· Land Use Plan

A person shall be appointed.

· Development Project Operators: ○ District Development Project Association

·Implementation Method: Replotting by landowners;

· Period of implementation: from the approval date of implementation plan to December 31, 2013.

x) On October 25, 2012, the head of the Daejeon Metropolitan City basin head notified the head of the ○○ District Development Project Association of the approval of the replotting plan for the second stage of Taeduk Special Research and Development Zone (○○ District).

(v) On November 1, 2012, the ○ District Development Project Association sent a report of designation of land scheduled for substitution and a statement of designation of land scheduled for substitution to its members. The land in this case is as follows:

A person shall be appointed.

⑹ 대전광역시 유성구청장은 2013. 6. 21. 아래와 같은 내용의 ‘대덕연구개발특구2단계(○○지구) 환지예정지 지정 공고’를 하였다.

· Project name: Stage 2 Special Research and Development Zone (○○ District) development project;

· Business Location: Daejeon Pream-gu ( Address 5 omitted) Mangwon

· Business area: 298,137 square meters

· Project implementer: ○ District Development Project Association

· Average reduction rate: 50%

· The effective date of the designation of reserved land for replotting: June 21, 2013

· Effects caused by the designation of reserved land for replotting

Under Article 36 (Effect of Designation of Reserved Land for Land Substitution) of the Urban Development Act, the same rights as before may be exercised with respect to the land scheduled for replotting or the relevant part from the effective date to the date of public announcement of a disposition of replotting, and no previous land shall be used

·Implementation Method: Replotting by landowners;

· Period of implementation: from the approval date of implementation plan to December 31, 2013.

⑺ ○○지구 개발사업조합은 원고 등 공동주택용지(환지분) 현금청산 신청자 26명으로부터 그 매매계약에 관한 일체의 권한을 위임받아 2014. 6. 26. 주식회사 부원유앤아이에게 이 사건 토지를 포함한 대전 유성구 (주소 4 생략) 대지 21,418.5㎡를 총 28,515,680,000원(이 사건 토지 매매대금은 305,812,811원)에 매도하는 내용의 계약을 체결하였는데, 그 계약서(갑 제8호증의 2, 이하 ‘이 사건 매매계약서’라 한다)의 제1조 2)항에는 ‘주식회사 부원유앤아이는 ○○지구 개발사업조합으로부터 위 부동산을 매입하여 주2) 체비지 와 함께 공동주택사업을 하려는 매수자의 지위에 있음을 상호 인정한다.’라고 기재되어 있다.

【Reasons for Recognition】 Evidence Nos. 1, 4 through 7, 8-1, 2, and the purport of the whole pleadings

D. Determination

In light of the following circumstances, which can be acknowledged by adding the factual basis and the overall purport of the arguments as seen earlier, it is reasonable to calculate capital gains tax according to the standard market price based on the “date of incorporation into a residential area, etc.” rather than on the “date of obtaining designation of a land scheduled for substitution.” Accordingly, if the Plaintiff deducts capital gains tax of KRW 43,964,080 calculated by applying the standard market price of “ June 21, 2013,” the date of designation of a land scheduled for substitution,” the Plaintiff’s excessive payment of capital gains tax of KRW 14,105,972 (i.e., capital gains tax of KRW 43,964,080 - 29,858,108). Accordingly, the disposition of refusing the Plaintiff’s request for correction on a different premise is unlawful.

① Development projects are projects implemented by the method of land substitution by landowners. On June 21, 2013, on the second phase of the Daejeon Special Research and Development Zone (○○ District) development projects are the projects implemented by the method of land substitution by the landowner. On June 21, 2013, the public announcement was made of the designation of land substitution planned to be substituted by the Daejeon Pung-gu (No. 4 omitted) A1

② The instant land sold by the Plaintiff is not a land designated as a land scheduled for replotting other than farmland prior to the disposition of land substitution [Article 1(2) of the instant sales contract, stating to the effect that, even in Article 1(2) of the instant sales contract, the Plaintiff purchased the instant real estate from the ○ District Development Project Association (other than a land secured for development outlay), and intends to carry out a collective housing project with the land secured for development outlay.

③ Since the Act on the Industrial Sites and Development (hereinafter “Industrial Sites Act”) which provides for matters necessary for the development of a national industrial complex falls under the category of “national industrial complex” under Article 43 of the Special Act on Special Research and Development Zones, and Articles 16-2 (Establishment, etc. of Cooperatives) and 24 (Land Substitution to Land Owners), the Urban Development Act shall apply mutatis mutandis to the land in question. Thus, the land in this case is deemed to have been designated as a land scheduled for replotting pursuant to the Urban Development Act or other Acts.

④ Even if an urban development project is implemented by a replotting method, the Urban Development Act stipulates that a district unit plan under the National Land Planning and Utilization Act shall be included in the implementation plan (Article 24(1) and Article 17(1) of the Urban Development Act), and since a replotting plan is established after the approval of an implementation plan is completed, it seems that the preparation of a district unit plan (the designation of a residential area, etc.) would always be prior to the designation of a land unit plan. Therefore, as in this case, if a project is conducted by a replotting method under the Urban Development Act as part of the process, solely on the ground that a district unit plan is formulated (the designation of a residential area, etc.). The latter part of the proviso to Article 69(1) of the former Act on Special Cases Concerning Taxation is deemed to be included in a residential area, etc. under the National Land Planning and Utilization Act or any other Act “where a land, other than a farmland, has been designated by a replotting plan prior to a replotting plan under the Urban Development Act or any other Act, the latter part of the proviso will be applied.

⑤ In cases where land is expropriated after being incorporated into a residential area, etc. pursuant to the Act on National Land Planning and Utilization, it is reasonable to impose tax on the income accrued from such designation based on the “date of designation, such as a residential area,” since development gains accrue only with such designation without any effort or involvement of the owner of the relevant land. However, as in this case, in cases where a project is implemented by a replotting method pursuant to the Urban Development Act, such development gains can be calculated only after the designation of a land scheduled for replotting is made, taking into account the depreciation rate, etc., so it is reasonable to impose tax on the income accrued thereafter. Rather, the proviso to Article 69(1) of the former Act on Special Cases concerning Tax Restriction provides for “where a land scheduled for replotting, other than a farmland, has been designated by a replotting method pursuant to the Urban Development Act or other Acts, separate from the cases of incorporation into a residential area, etc. under the National Land Planning and Utilization Act” can be seen as such purport.

(6) Ultimately, insofar as a project is implemented by a replotting method pursuant to the Urban Development Act and the instant land was designated as a reserved land for replotting, it is reasonable to deem that such land was designated as a reserved land, other than farmland, prior to a replotting disposition pursuant to the Urban Development Act or other Acts.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance shall be unfair on the grounds of its conclusion, so it shall be revoked and the disposition of this case shall be revoked and so decided as per Disposition.

[Attachment]

The judge’s seat (Presiding Judge) Kim-type crime

(1) Although the Plaintiff seeks the revocation of the “Occasional Transfer Income Tax for the year 2015”, in light of the transfer time and the payment time of the transfer income tax as seen below, it appears to be a clerical error in the “Occasional Transfer Income Tax for the year 2014” and there is no obstacle to the specific determination even if it is written only as “transfer income tax”.

2) The land which is set up in order to be used as business resources while conducting the land partition project. The land allotted by the authorities in recompense for development outlay is to remove and eliminate certain parts of the land owners within the land rearrangement project zone, and it is to reduce the proportion of the land to be owned.