사업시행자의 사업 또는 보상을 지연시키는 부득이한 사유에 해당하지 않아 양도소득세 감면배제는 적법함.[국승]
Transfer of Examination 2013-0149, Trial Panel 2013B3480
The exclusion of capital gains tax reduction or exemption is legitimate because it does not fall under extenuating circumstances to delay the project or compensation of the project implementer.
The disposition that excludes capital gains tax reduction or exemption is legitimate because the farmland in Metropolitan Cities as of the date of transfer falls under a large-scale development project or a project operator prescribed by Ordinance of the Ministry of Strategy and Finance who has been incorporated into a residential area under the National Land Planning and Utilization Act, or does not fall under extenuating circumstances for delaying business or compensation.
Article 66 of the Enforcement Decree of the Restriction of Special Taxation Act
Daejeon District Court 2014Gudan10087
SungA et al.
Daejeon director of the tax office
June 20, 2014
July 25, 2014
1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.
The defendant's rejection disposition against the plaintiffs on January 21, 2013 shall be revoked in entirety (the appeal).
"Date of January 23, 2013" of the date of the rejection of the plaintiff B's request for correction against the plaintiff B as stated in the purport of the Gu is erroneous.
Inasmuch as it is clear that it is above, it is the above).
1. Details of the disposition;
A. On October 3, 2012, Plaintiff Sung-dong and six parcels, other than 110 m2, and one parcel, other than 10 m2,325 m2, owned by Plaintiff Lee Dong-dong (hereinafter referred to as the “instant land”). On October 3, 2012, Plaintiff Sung-A was paid the liquidation money of KRW 000, 000, and Plaintiff B was paid the liquidation money of KRW 000, 300, respectively. On October 31, 2012, Plaintiff Sung-A may not file a claim for correction of KRW 00,000, and Plaintiff B’s claim for correction of KRW 100,000, KRW 00, KRW 100, KRW 200, KRW 160, KRW 160, respectively.
[Ground of recognition] Facts without dispute, entry of evidence Nos. 1 and 2, purport of the whole pleadings
2. Whether the dispositions of the instant case are legal.
A. The plaintiffs' assertion
For the following reasons, the instant disposition is unlawful.
(1) If the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 24271, Dec. 28, 2012; hereinafter referred to as the "former Enforcement Decree of the Restriction of Special Taxation Act"), falls under any of the proviso of Article 66(4)1 (a), 66(4)1 (b), 66(4)1 (b), and 66(4)2 proviso, the amount of tax equivalent to 100/100 of the capital gains tax shall be reduced or exempted. (2) The Plaintiffs received substitute payment, and thus, fall under the proviso of Article 66(4)2 of the former Enforcement Decree of the Restriction of Special Taxation Act.
(3) An urban development project on the instant land is not related to the foreign exchange crisis since it was fully promoted after the foreign exchange crisis was overcoming, and even if the implementation of the project was delayed due to the foreign exchange crisis and the real estate economic erosion, the project implementer should have conducted the project by fully examining various circumstances, such as the future real estate market outlook in advance. Therefore, the Plaintiffs are liable for delay in business or compensation.
(4) Article 66(4)1 proviso of the former Enforcement Decree of the Restriction of Special Taxation Act provides that the said proviso shall be limited to cases where the landowner in the project execution area is not less than one thousand persons or where the project execution area is more than the scale prescribed by Ordinance of the Ministry of Strategy and Finance. However, the Restriction of Special Taxation Act does not delegate the same to the Enforcement Decree so that it may be reduced or exempted on the basis of the number of landowners or the project execution area, regardless of the landowner’s own intent, and otherwise prescribes whether to grant reduction or exemption depending on the number of landowners or the project execution area, regardless of the landowner’s own intent, is in violation of the principle of equality or the guarantee of property rights as stipulated in the Constitution, and thus, Article 66(4)1 proviso (a) of the Enforcement Decree of the Restriction of Special Taxation Act provides that the said provision is invalid without statutory delegation. Accordingly, if three years have elapsed from the date of incorporation of farmland in the small project execution area as farmland incorporated in the residential area, etc. as a result
(b) Related statutes;
It is as shown in the attached Form.
C. Determination
(1) Article 66 (4) of the former Enforcement Decree of the Restriction of Special Taxation Act provides that "land prescribed by Presidential Decree" shall be excluded from capital gains tax reduction or exemption pursuant to the main sentence of Article 69 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act. Therefore, land subject to capital gains tax reduction or exemption is excluded from those subject to capital gains tax reduction or exemption pursuant to the main sentence of Article 66 (4) 1 and 2 of the former Enforcement Decree of the Restriction of Special Taxation Act. Since the land falls under any of the proviso of Article 66 (4) 1 of the former Enforcement Decree of the Restriction of Special Taxation Act and Article 66 (4) 1 (a) or (b) of the former Enforcement Decree of the Restriction of Special Taxation Act is excluded from the scope of Article 66 (4) 1 of the former Enforcement Decree of the Restriction of Special Taxation Act because there is no room for dispute over the land subject to reduction or exemption for the purpose of Article 66 (4) 2 (proviso) of the former Enforcement Decree of the Restriction of Special Taxation Act.
(3) Therefore, the instant disposition rejecting the Plaintiffs’ request for correction is lawful.
3.In conclusion
Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.