2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 447,119,130 for the Plaintiff on July 10, 2012, in excess of KRW 126,172,926, is revoked.

A. On February 17, 1970, the Plaintiff acquired the instant land by inheritance through consultation and division between ○○○-dong, 746-26, and 622.6m2 (hereinafter “instant land”) on the land on March 29, 199, the Plaintiff obtained a building permit for the construction of Class 2 neighborhood living facilities (hereinafter “instant building”) of the first floor, the third floor above ground, and the total floor area of 892.64m2 of the instant building for the purpose of leasing the instant land on the land for the purpose of leasing it. On December 29, 2005, the Plaintiff completed the construction of the instant building at a fair rate of 95% except for artificial park construction, but the building at ○○-dong, 746-24, the neighboring land (hereinafter “instant disputed building”) was over 3.5m24m24, and was delayed due to the delay in the construction of the instant land and did not obtain the approval for the use of the building without completion of the construction.

B. The Plaintiff attempted to rent the instant building after December 3, 2005. However, on October 23, 2007, the Plaintiff: (a) on July 12, 2010, sold to BB and CCC all the instant land and buildings in the purchase price of KRW 4,200,000; (b) on October 31, 2010, the Plaintiff reported and paid KRW 1,261,938,398 as capital gains tax on the said land and buildings; (c) on October 23, 2007, the Plaintiff asserted that the instant land falls under one parcel of land owned by one household which does not own a house under the Income Tax Act and subordinate statutes, and filed a claim for correction by applying the special deduction for long-term holding of capital gains tax.

C. On July 10, 2012, the Defendant excluded the application of special deduction for long-term possession on the ground that the instant land constitutes non-business land, and rendered a disposition of correction and notification imposing KRW 447,119,130 as capital gains tax for the year 2010 (hereinafter “instant disposition”).

D. On October 12, 2012, the Plaintiff rejected the request for adjudication, and the Tax Tribunal rendered a partial decision to the Defendant to rectify the tax base and tax amount according to the result of re-survey as to whether the instant land is a business land. On August 21, 2013, the Defendant notified the Plaintiff on August 21, 2013 that the instant disposition was justifiable as a result of the investigation pursuant to the said decision.

Facts that there is no dispute over recognition, Gap evidence 1 through 15 (including paper numbers, hereinafter the same shall apply), Eul evidence 5 through 8, Eul evidence 11 through 13, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Since the Plaintiff failed to undergo a completion inspection as a matter of the parking lot of the instant building, and the site owner transferred the instant land to a state where it was not used for any purpose, the said land constitutes a ground for excluding land for non-business under the Income Tax Act and subordinate statutes as the Plaintiff, who is a homeless household, can newly construct

(2) From October 20, 2002 after the Plaintiff started construction of the instant building on or around October 20, 2002, from around December 2005, the Plaintiff was unable to proceed with the remainder construction at the expense of bordering and removing the instant building and the construction due to justifiable grounds, and thus, the Plaintiff’s suspension of construction due to justifiable grounds should be excluded from the land for non-business as it constitutes “where the use is prohibited by law or there is any other unavoidable reason after the acquisition of land under the Income Tax Act.”

(3) If so, when calculating the tax base and reasonable tax amount by applying the special deduction for long-term holding of land for business purposes, the portion equivalent to KRW 320,946,204 of the instant disposition shall be revoked in an unlawful manner.

B. Relevant statutes

(2) According to Article 95 of the Income Tax Act, the term "non-business land" in this context means land, other than farmland, forest land, and land for stock farm, for which property tax is exempted or exempted under the Local Tax Act or related Acts and subordinate statutes; (1) land subject to separate taxation or separate taxation of property tax under Article 106 (1) of the Local Tax Act; (3) land prescribed by Presidential Decree as having considerable reasons for deeming that it is directly related to residence or business in consideration of the situation of land use; and Article 168-11 (1) 13 of the Enforcement Decree; Article 83-4 (16) of the Enforcement Rule of the Income Tax Act provides that one lot of land owned by one household which does not own a house (referring to land which does not fall under subparagraphs 1 through 12, and is not used for any purpose) and the category of land, the category of which can not be newly constructed or restricted pursuant to the provisions of Acts and subordinate statutes and subordinate statutes, shall be 60 square meters or less.

Meanwhile, Article 104-3 (2) of the Income Tax Act provides that the land shall not be deemed the land for non-business if there is a prohibition of use under the Act after the acquisition of the land, or if there are other inevitable reasons prescribed by the Presidential Decree, such land shall not be deemed the land for non-business use. Article 168-14 (1) 4 of the Enforcement Decree and Article 83-5 (1) 5 of the Enforcement Decree of the Income Tax Act provide that the land falling under inevitable reasons shall not be deemed the land for non-business use in consideration of public interest, restrictions on the law due to corporate restructuring or inevitable reasons, the current status, reasons for acquisition or utilization status, etc. of the land, and the land, the construction of which is commenced to acquire the land on which the building is not settled on the ground and is under construction after the commencement date of the construction (including the period of suspension

C. Determination

(1) First of all, we examine whether the land of this case is a parcel of land owned by one household, which does not own a house, and constitutes a ground for exclusion from non-business land. According to the aforementioned evidence, the fact that the Plaintiff is a homeless person at the time of the transfer of the land of this case is recognized, but it is difficult to view the land as a Nana as a ground for exclusion from non-business land under the Income Tax Act in light of the following

(A) Under the principle of no taxation without the law, or the interpretation of tax laws and regulations shall be interpreted in accordance with the law, barring any special circumstances. It is not permitted to expand or analogically interpret the said laws and regulations without reasonable grounds. Of the transfer income tax on the land for non-business use, the transfer income tax and the system are classified into the land for non-business use, which is owned by an individual as a means of property increase and is not used for production according to the actual demand, and are transferred as a means of property increase, and have the legislative purpose of preventing speculative demand for the land (see Supreme Court Decision 2010Du17281, Oct. 25, 2012). Therefore, the same interpretation doctrine should apply to the reasons for exclusion of the land for non-business use, which

(B) With respect to "land which has considerable reasons to recognize that it is directly related to the residence or business of the non-business land" due to the exclusion items from the application of the income tax law, it appears that the Enforcement Decree of the Income Tax Act lists each subparagraph of Article 168-11 (1) 1 through 12 with the land related to the business, and subparagraph 13 with the land related to the residence, and it is the basis for the main determination whether it is possible to newly construct the house on the ground for the land related to the residence.

(C) Therefore, it is necessary to consider that the "Nab" under the above subparagraph 13 was mainly focused on the possibility of newly building a house, and it is required to be a land which is not used for any purpose other than the requirements of subparagraphs 1 through 12 above, and is practically a newly constructed house. In light of the fact that the plaintiff constructed the building of this case with the 1st, 3rd, and 892.64m2 for the purpose of leasing a commercial building for the purpose of leasing a commercial building and actually completed the building after December 2005, except for the lack of the approval for use due to the lack of the construction of a parking lot, and that there was a subsequent construction of a part of a commercial building lease after the fact that there was no approval for use of the building of this case or the fact that the building was used for the first purpose is not used for any purpose, it cannot be deemed that the land of this case has considerable reasons to recognize that it was directly related to the land or residence in which the house can be newly constructed.

(D) Unlike the case where the former Enforcement Decree of the Income Tax Act provides a clear provision on the premise of land on which a balone or a balone building is not settled, and unlike the case where a balone or a balone building is stipulated in the former Enforcement Decree of the Income Tax Act by clearly stating that a balone building is built on a site without permission as prescribed by the Ordinance of the Ministry of Finance and Economy or the Ordinance of the Prime Minister, Article 168-11 (1) 13 of the Enforcement Decree of the Income Tax Act provides that "land which does not fall under subparagraphs 1 through 12, and is not being used for any purpose." Thus, there

(2) Next, the land of this case is excluded from the application of non-business land due to unavoidable reasons.

I examine whether there was a sufficient period of time.

It is reasonable to view that the purpose of the income tax law as seen earlier is to not treat the land for non-business use when it was intended to use the land for business because there was no restriction on the use of the land at the time of acquiring the land, but it was impossible to use the land due to the change of the situation due to a cause not attributable to the owner after acquiring the land, it is difficult to view that the construction of the building in this case was suspended due to a natural disaster, civil petition, or any other justifiable cause not attributable to the Plaintiff, and there is no other evidence to deem otherwise.

(3) If so, the instant disposition that did not apply the special deduction for long-term holding in the same argument is lawful, and the Plaintiff’s assertion is without merit without further examining the amount of tax on the premise that the said special deduction is applied.

3. Conclusion