수용으로 인한 양도의 경우에도 부동산매매업의 연장선에서 양도가 이루어진 경우 사업소득에 해당함.[국승]
Appellate Court 2012 Middle 4744 (2013.07)
In the case of transfer due to expropriation, it shall be the business income if the transfer is made on the extension line of real estate sales business.
In light of all circumstances before and after the time when the pertinent transfer took place, it is reasonable to deem that the transfer of each of the instant lands was conducted in the extension line of real estate sales business, and that there was continuity and repetition as much as it can be viewed as business activities for profit-making purposes.
Article 19 of the Income Tax Act
2013Guhap4669 Revocation of revocation of a request for rectification
IsaA
O Head of tax office
November 13, 2013
January 8, 2014
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The defendant's rejection of correction against the plaintiff on April 26, 2012 is revoked on the global income tax for the year 2009 and the global income tax for the year 2010.
1. Details of the disposition;
A. On November 2, 2002, the Plaintiff acquired an OO-dong O-dong 21-2 forest 24,426 square meters. On July 9, 2009, the Plaintiff divided the 4,514 square meters of the above land into 538-8 forest 1,398 square meters, 538-14 square meters of forest 538-14 square meters, 538-14 square meters of forest 538-15 forest 3,113 square meters of forest 538-15 square meters, and started construction of commercial buildings on that land.
B. As the site for the construction of the said commercial building was incorporated into the road site for the O-new city, the Plaintiff transferred the said land on August 4, 2009, on the ground that the Plaintiff reported the income from the transfer of each of the instant land as the business income at the time of filing a global income tax return in 2009 and 238-14 of the said land on February 4, 2010 and 1,282/1,398 of the said 538-8 land and 538-14 of the said 538-8 land on the ground of an agreement for the acquisition of public land (hereinafter collectively referred to as “each of the instant land”), and paid the said comprehensive income tax by reporting the income from the transfer of each of the instant land as the business income at the time of filing a global income tax return in 209 and 2010.
C. On March 7, 2012, the Plaintiff filed a claim with the Defendant for revocation of the part corresponding to the compensation for expropriation of each of the instant land among the global income tax on the grounds that the compensation for expropriation of each of the instant land is not business income, not capital gains, and for revocation of the said portion and request for correction as capital gains. However, the Defendant rejected the Plaintiff’s request for correction on April 26, 2012 (hereinafter “instant disposition”).
D. The Plaintiff appealed and filed an objection on July 4, 2012, but was dismissed on August 8, 201 of the same year, and again filed an appeal with the Tax Tribunal on October 31 of the same year, but was dismissed on March 7, 2013.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8 (including virtual number), the purport of the whole pleadings
2. Details of the disposition;
A. The plaintiff's assertion
Considering the fact that the transfer of the instant land to OO Urban Corporation had no continuity and repetition of the transfer of the instant land, and the Plaintiff did not intend to make profits by transferring each of the instant land to OO Urban Corporation, but was for the purpose of engaging in rental business by newly building commercial buildings on each of the instant land, the compensation for expropriation of each of the instant land shall be deemed as transfer income, not business income.
B. Relevant statutes
/ Income Tax Act
Article 19 (Business Income)
(1) Business income shall be the following income, generated in the relevant taxable period:
12. Income generated from real estate business and rental business: Provided, That income generated by lending rights prescribed by Presidential Decree, such as easement, etc. shall be excluded;
(c) Fact of recognition;
1) The Plaintiff operated the business from 1997 to 2012 as follows.
Trade Name
Type of Business
Places of business
Project period
BB Housing Construction
Construction Business (Housing, Sale)
OOO-dong 882-1, 201
From August 5, 1997 to April 17, 2012
CC Housing Construction
Construction Business (Housing)
OO-dong 393-40
From December 1, 2001 to October 9, 2007
D Industrial Development
Construction Business (General Building)
OO-dong 538-8
From September 3, 2009 to December 7, 2009
2) In addition, the Plaintiff developed a total of 19,912 square meters of land remaining 19,912 square meters of land, including each of the instant land, among 24,426 square meters of OO-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong 21-2, 24,0
The housing site was sold in lots.
3) The details of the Plaintiff’s acquisition and transfer of real estate are as follows.
See Table 4 see Court Decision 4
[Reasons for Recognition] The aforementioned evidence, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings
D. Determination
Whether the income from the transfer of real estate is business income or capital gains under the Income Tax Act shall be determined according to the ordinary social norms, taking into account the transferor’s acquisition and holding of real estate, whether the transfer is made, whether the transfer is made, the scale and frequency of the transfer, the mode, and the continuity and repetition of business activities to the extent that the transfer aims at profit, and whether the transfer is made. In making such determination, not only the transfer of real estate concerned but also the transfer of real estate owned by the transferor, shall take into account all the circumstances before and after the time the transfer took place (see Supreme Court Decision 2008Du21768, Jul. 22, 2010).
In light of the following circumstances revealed as seen earlier, it is reasonable to view that the transfer of each of the instant lands to OOcity Corporation by the Plaintiff was made from the extension of real estate sales business operated by the Plaintiff to the end of 2012, and the Plaintiff was engaged in real estate sales business in installments. ② The Plaintiff acquired several real estate during the period of running the said real estate sales business, and subsequently transferred it again. ③ Each of the instant lands was part of the land developed and sold by the Plaintiff, ④ the Plaintiff was the Plaintiff, and ④ there was no specific preparation for rent for the commercial buildings scheduled to be newly constructed on each of the instant lands. As such, it is reasonable to deem that the transfer of each of the instant lands to OOcity Corporation was made from the extension of the real estate sales business operated by the Plaintiff to the extent that it can be seen as having been continued and repeated as having been made for profit-making business.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.