비사업용토지에 해당하여 장기보유특별공제 배제한 처분은 적법함[국승]
Daegu District Court 201Guhap4123 (23 May 2012)
Cho High 201-Gu0621 (Law No. 108, 2011.08)
The disposition that excluded the special deduction for long-term possession as land for non-business is legitimate.
Even if the status of land is miscellaneous land, it cannot be viewed as land subject to the separate taxation or separate taxation under the Local Tax Act because it is virtually left alone and is the miscellaneous and miscellaneous person, and even if property tax is subject to separate taxation because it is classified as a answer according to the land category in the public register, it falls under the land for non-business as farmland not cultivated by itself.
2012Nu1281 Revocation of disposition of imposing capital gains tax
XX Kim
Head of the Daegu Tax Office
Daegu District Court Decision 201Guhap4123 Decided May 23, 2012
September 14, 2012
September 28, 2012
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance is revoked. The defendant's disposition of imposition of capital gains tax of KRW 000 against the plaintiff on October 4, 2010 is revoked (the date of the disposition and the amount of tax stated in the complaint seems to be erroneous).
1. Quotation of judgment of the first instance;
The reasoning of the judgment of the court on this case is as stated in the reasoning of the judgment of the court of first instance, except for the addition of the judgment on the plaintiff's assertion as set forth in paragraph (2) below, and thus, this is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420
2. Additional determination
A. The plaintiff's assertion
Even if the present state of the instant land is not forest land, it was virtually miscellaneous since around 2005 without cultivating the instant land, and its present state was de facto miscellaneous. Pursuant to Article 104-3(1)4(b) of the Income Tax Act, the instant land constitutes land subject to separate taxation of property tax or separate taxation of property tax under Article 106(1)2 and 3 of the Local Tax Act, and cannot be deemed land for non-business use. Thus, the instant disposition otherwise reported is unlawful.
B. Determination
Even if the present state of the instant land is miscellaneous as alleged by the Plaintiff, in order to be recognized as a non-business land for special deduction for long-term holding, it should fall under the land stipulated in each item of Article 104-3 (1) 4 of the Income Tax Act. However, even according to the Plaintiff’s assertion, the instant land is in a state where a person is miscellaneous and miscellaneous since it was virtually left unattended since 2005, and thus, it cannot be deemed as the land subject to special aggregate taxation or separate taxation of property tax under Article 106 (1) 2 and 3 of the Local Tax Act, such as the land used for passenger transport business, the land for a vehicle driving school, etc.
Furthermore, even if the land of this case is classified as a answer according to its land category in the public register and the property tax under the Local Tax Act is subject to separate taxation, since the plaintiff has been a person who has not cultivated the land of this case since 2005, the land of this case constitutes a non-business land as "farmland whose owner does not reside in the seat of farmland or has not cultivated himself/herself, as prescribed by Presidential Decree" under Article 104-3 (1) 1 (a) of the Income Tax Act.
Therefore, the plaintiff's above assertion has no reason to see any mother.
3. Conclusion
Therefore, the judgment of the court of first instance dismissing the plaintiff's claim of this case is just and there is no ground for appeal by the plaintiff, and it is so decided as per Disposition.