농지전용허가를 받았더라도 실제 건축행위가 없는 경우 비사업용토지로 본 이 사건 처분은 정당함[국승]
If there is no actual construction activity even if permission for diversion of farmland was obtained, the disposition of this case as non-business land is legitimate.
At the time of the transfer of land, the land of this case should have been used for the exclusive purpose, and only the preparation for the construction was conducted, but the actual construction was not conducted, and it is difficult to view that the land of this case was used for the exclusive purpose at the time of the transfer, and therefore the disposition of this case as the land for non-business purpose is legitimate
Income Tax Act other than Article 104-3
2018Guhap52777 The revocation of the disposition of imposing additional dues and the action of claiming the refund of subrogated amount
AA
BB Director of the Tax Office
on October 27, 2019
on October 05, 2019
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2016 against the Plaintiff on April 3, 2017 is revoked.
1. Details of the disposition;
가. ◆◆◆는 2013. 8. 28. 주식회사 ◇◇◇와 사이에 [별지1] 목록 기재 토지(이하 '이 사건 토지'라고 한다)를 000원에 매도하는 내용의 매매계약을 체결하였다.
나. ◇◇◇는 2013. 10. 24. □□시로부터 이 사건 토지 등에 관하여 중소기업창업 지원법에 따른 창업계획 승인을 받았고, 같은 날 ◇◇◇의 주주이자 직원인 원고와 ◆◆◆ 사이에 원고를 이 사건 토지의 매수인으로 하는 새로운 매매계약서가 작성되어 2013. 11. 11. 원고 앞으로 이 사건 토지에 관한 소유권이전등기가 경료되었다.
C. The head of the Si/Gun/Gu, the head of the Si/Gun/Gu, or the Plaintiff had prepared a new construction for the purpose of establishing a factory on the instant land, such as entering into a license and license service contract, concluding a guarantee insurance contract, and purchasing regional development bonds
D. On January 28, 2016, the Plaintiff transferred the instant land to △△△△△ (hereinafter “△△△△△”). On March 31, 2016, the Plaintiff reported KRW 000 of the capital gains tax on the instant land by applying the basic tax rate to the capital gains tax base.
E. On April 3, 2017, the Defendant: (a) deemed that the instant land transferred without commencement of construction of a factory building constitutes non-business land; and (b) applied the tax rate calculated by adding 10% to the basic tax rate, and notified the Plaintiff of KRW 000 of the capital gains tax for the year 2016 (hereinafter “instant disposition”).
[Ground of recognition] Unsatisfy, Gap evidence 2 to 13, 17, and Eul evidence 1 to 3
Second, the purport of the whole pleading
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The proviso of Article 104-3 (1) 1 (a) of the former Income Tax Act (amended by Act No. 14389, Dec. 20, 2016; hereinafter referred to as the "former Income Tax Act") excludes "land prescribed by Presidential Decree as farmland that can be owned under the Farmland Act or other Acts" from land for non-business use. Article 168-8 (3) 4 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26982, Feb. 17, 2016; hereinafter referred to as the "former Enforcement Decree of the Income Tax Act") provides that "land for non-business use or farmland conversion as farmland for which the person who reported the diversion of farmland has completed farmland or farmland conversion consultation, which was the largest shareholder, is deemed to have obtained permission for farmland diversion under the Farmland Act by obtaining approval of the business plan under the Support for Small and Medium Enterprise Establishment Act. Therefore, the land in this case is not the land for non-business use.
B. Relevant statutes
[Attachment 2] The entry is as follows.
C. Determination
(1) Relevant legal principles
In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws shall be interpreted in accordance with the text of the law unless there are special circumstances. It is not allowed to expand or analogically interpret without reasonable grounds. In particular, it conforms to the principle of fair taxation to strictly interpret that the provision is clearly preferential among the requirements for tax exemption or exemption (see Supreme Court Decision 97Nu20090, Mar. 27, 1998).
(2) Interpretation of the relevant statutes
(A) Article 104-3 (1) 1 (a) of the former Income Tax Act stipulates that the owner of the farmland shall be deemed as the “land for non-business use” if he/she does not reside in the seat of the farmland or if he/she does not cultivate the farmland, it shall be excluded from the cases prescribed by Presidential Decree as farmland that may be owned by the owner under the Farmland Act or other Acts. Article 168-8 (3) 4 of the former Enforcement Decree of Income Tax Act provides that the “land used for the relevant exclusive purpose as farmland after completing the farmland conversion permission or the consultation on farmland conversion under the Farmland Act shall be deemed as falling under the grounds for exclusion under the proviso of Article 104-3 (1) 1 (a) of the Income Tax Act, and Article 35 (1) 9 of the Support for Small and Medium Enterprise Establishment Act provides that when the business plan is approved under the Support for Small and Medium Enterprise Establishment Act, the land used for the relevant exclusive purpose shall be excluded from the “land for which a person deemed to have obtained the permission on farmland conversion under the Farmland Act.”
(B) As to this, the plaintiff asserts that the part of "land used for the pertinent exclusive purpose" in Article 168-8 (3) 4 of the former Enforcement Decree of the Income Tax Act should be interpreted as applicable only to "farmland which has completed the farmland diversion consultation, not "farmland owned by the person who obtained permission for or made a report on the diversion of farmland". However, in light of the structure of the above Article where the permission for, report on, or consultation on the diversion of farmland is ruptured, the requirement of "use for the exclusive purpose" shall be deemed to apply both to the above three cases. It is natural to view that all the provisions apply to the above three cases, and the contents of the permission for, permission for, or report on, the diversion of farmland and consultation on the diversion of farmland are deemed to be due to the necessity to specify them differently under the Farmland Act, and it is difficult to accept the plaintiff's assertion in this part because there is no difference between the permission for, report on, and consultation on the diversion of farmland.
(3) Specific determination
For the following reasons, the Plaintiff’s assertion that the instant land constitutes non-business land is without merit.
(A) On October 24, 2013, the court below held that the land of this case was approved as a business start-up plan under the Support for Small and Medium Enterprise Establishment Act in relation to the land of this case, but the owner at the time of transferring the land of this case to △△△△△△, the plaintiff who is not the party at issue, and the land of this case does not constitute "farmland owned by the person who has obtained permission for farmland diversion" under Article 168-8 (3) 4 of the Enforcement Decree
(B) In addition, in order to consider the instant land that is not a non-business land, the instant land should have been used for the exclusive purpose at the time of transferring the instant land to △△△△, and as seen earlier, it is difficult to deem that the instant land was used for the exclusive purpose at the time of transfer, since only the preparation for the instant land was conducted in connection with the instant land, but the actual construction was not conducted.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.