[양도소득세등부과처분취소][공1994.1.15.(960),221]
In a case where a ground building is owned by another person or fails to undergo a completion inspection, whether such land constitutes “land without a building” as prescribed in Article 46-3 of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 13194, Dec. 31, 190).
As long as a building is constructed on the ground of the land with lawful permission in calculating the transfer income tax, even if the building is owned by another person, or it has not yet undergone the inspection of completion, it cannot be said that the land has no building excluded from the special deduction for long-term holding under Article 46-3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194 of Dec. 31, 190).
Article 46-3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194 of Dec. 31, 1990)
[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)
Plaintiff
Head of the Cleanness Tax Office
Seoul High Court Decision 92Gu29728 delivered on June 23, 1993
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
According to the records, the court below's decision that the amount of special long-term holding deduction equivalent to 30/100 of transfer margin should be deducted in determining the transfer margin since the real transfer value of the land in this case was 48,243,000 won and the building was already constructed on the fourth floor owned by the non-party agricultural cooperative in the Dong branch before the exchange of the land in this case, and therefore there is no error of incomplete deliberation such as theory. In calculating the transfer margin of the land, as long as a building is constructed on the ground of the building with legitimate permission in the calculation of the transfer income of the land, even if the building is owned by others or it was not yet passed a completion inspection, the land cannot be considered as "land without a building excluded from the special long-term holding deduction under Article 46-3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194 of Dec. 31, 190)". It is without merit.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeong Jong-ho (Presiding Justice)