공부상 지목과 달리 사실상 현황이 임야에 해당한다고 인정하기 어려움[국승]
Cho High Court Decision 2010Du1559 (Law No. 29, 2011)
It is difficult to recognize that the current status is a forest unlike the land category in the public register.
The actual status of land during the retention period is insufficient to be deemed as forest land, unlike land category, and there is no evidence to acknowledge it, and it seems that it was merely neglected even if it was possible to use the land in accordance with land category according to the registration status in the public account book. Therefore, it constitutes land for non-business
Article 104-3 of the Income Tax Act
Article 168-9 of the Enforcement Decree
2011Gudan18574 Revocation of Disposition of Imposing capital gains tax
XX Kim
Director of the District Office
February 17, 2012
March 9, 2012
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The Defendant’s imposition of capital gains tax of KRW 341,062,890 against the Plaintiff on February 1, 2010 and the imposition of KRW 151,958,560 against the Plaintiff is revoked (it is apparent that “15,958,560” written in the written complaint is a clerical error of KRW 151,958,560).
1. Details of the disposition;
A. On May 31, 2003, the Plaintiff acquired 400 m200 m200 m200 m200 m200 m200 m200 m200 m200 m200 m20 m200 m200 m200 m200 m200 m200 m200 m200 m200 m200 m200 m200 m200 m208, but on September 10, 2008, on November 14, 2008, the Plaintiff transferred each of the instant land to the Co., Ltd., and transferred all of the instant land to the Co., Ltd., with the general transfer income tax rate (36 m289,769, 260 m20 m20 m20 m202
B. On February 1, 2010, the Defendant: (a) considered the instant land as land for non-business use; and (b) additionally imposed and notified the Plaintiff of the transfer income tax of KRW 341,062,890 (related to the instant land 1) and KRW 151,958,560 (related to the instant land 2) for the transfer income tax of KRW 151,958,560 (related to the instant land 2).
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 5 (including above numbers), the purport of the whole pleadings
2. Whether the disposition is lawful;
A. The plaintiff's assertion
Land Nos. 1 and 2 of this case is located in the military facility protection zone from the time of acquisition to the time of transfer, and its actual status is different from the category of land, and thus does not constitute non-business land. On a different premise, the instant disposition by the Defendant is unlawful.
B. Determination
In applying the provisions of Article 104-3 of the former Income Tax Act on the scope of non-business land (Article 168-7 of the Enforcement Decree of the Income Tax Act), forests and fields in military bases and military facility protection zones under the Protection of Military Bases and Installations Act are excluded from non-business land, which are essential for the public interest or for the protection and fosterage of forests, and are also excluded from the land for non-business use (Article 104-3 (1) 2 (a) of the former Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008; hereinafter the same shall apply), and Article 104-3 of the former Income Tax Act on the scope of non-business land (Article 168-7 of the Enforcement Decree of the Income Tax Act), the determination of farmland, forests, stock farms and other land shall be based on the actual state of registration on the public register if the actual state is unclear (Article 168-7 of the Enforcement Decree of the Income Tax Act), Article 5 of the former Enforcement Decree of the Income Tax Act (deed by Act No. 974 of the same Act).
In this case, the evidence presented by the Plaintiff alone is insufficient to see that the actual status of the land Nos. 1 and 2 in this case during the period of possession by the Plaintiff falls under forest land unlike the land category, and there is no other evidence to recognize it. Thus, the land Nos. 1 and 2 in this case should be determined before and according to the registration status in the public record.
On a different premise, the plaintiff's assertion is without merit (in addition to the purport of the whole argument of the plaintiff's submission of evidence, it seems that the plaintiff neglected the use of the land category after acquiring the land category Nos. 1 and 2 of this case, the whole land category of which is the whole and the whole land category, without using it. Therefore, it seems that such land is deemed land for non-business use and preventing the owner from sufficiently realizing the transfer margin by focusing on the transfer income tax is also consistent with the legislative intent of Article 10
3. Conclusion
Thus, the plaintiff's claim is dismissed as it is without merit.