임야 취득후 산지전용제한지역으로 지정된 경우 비사업용토지 해당여부[국승]
Seoul Administrative Court 2008Gudan16462 ( October 19, 2009)
Cho High Court Decision 2008Do1968 (Law No. 26, 2008)
Whether land for non-business use is designated as a restricted area for forest acquisition;
Since "the prohibition of use due to the provisions of the law after the acquisition of the land" is clearly defined as "the land which is prohibited or restricted from the use pursuant to the law", there should be restrictions on the use of the land after the acquisition of the land for the purpose of becoming the land excluded from the idle land.
The contents of the decision shall be the same as attached.
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the plaintiff.
The judgment of the first instance shall be revoked, and the imposition of capital gains tax of KRW 162,886,470 against the plaintiff on April 10, 2008 shall be revoked.
1. A part citing a judgment of the first instance;
The reasoning for the court's explanation concerning this case is as follows: (a) additional determination on the plaintiff's assertion is required as stated in Paragraph (2); and (b) amendment of Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, except for the amendment of Article 18 of the Act on the Protection, etc. of Administrative Litigation and Article 18 of the Act on the Protection, etc. of Administrative Litigation.
2. Additional determination
A. The plaintiff's assertion
In light of the fact that Article 168-14(3)1-2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21195, Dec. 31, 2008) amended after the Plaintiff’s transfer of the instant land provides that “farmland, forest land, and land for stock farm cultivated directly for not less than eight years while living in the land location prescribed by Ordinance of the Ministry of Strategy and Finance, which is inherited or donated by the relevant lineal ascendant,” the Plaintiff’s transfer of the instant land shall not be deemed as an exceptional provision, not an “land for stock farm” under Article 168-14(1)1 and 2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890, Feb. 28, 2007); Article 83-5(1)1 through 115 of the Enforcement Rule of the Income Tax Act (amended by Presidential Decree No. 512, Jul. 5, 2006); therefore, it shall not be deemed that the instant land falls under subparagraphs 1 through 28 through 15-18(108).15.
B. Determination
Pursuant to Article 168-14 (3) 1-2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21195, Dec. 31, 2008), Article 168-14 (1) 1 and 2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890, Feb. 28, 2007); Article 83-5 (1) 1 through 11 of the Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 512, Jul. 5, 2006), it is difficult to view that the Plaintiff’s above assertion based on this premise falls under an exemplary provision.
3. Conclusion
Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.