건축물에 부수되는 토지의 일부를 양도하는 경우 장기보유특별공제 대상 여부[국승]
Where part of land attached to a building is transferred, whether it is subject to special long-term holding deduction.
Where part of the land attached to a building is transferred, if the area of the land not transferred is equal to or exceeds the area subject to the special long-term holding deduction, the land transferred shall be excluded from the special long-term holding deduction.
The contents of the decision shall be the same as attached.
The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.
1. 갑 제1호증, 갑 제4호증의1,2, 갑 제5,6호증, 을 제1,2호증의 각 1,2, 을 제3,4호증의1,2,3의 각 기재에 변론의 전취지를 모아보면, 원고가 1964. 12. 23.취득하여 소유하고 있던 부산 ㅇ구 ㅇㅇ동 ㅇㅇㅇㅇ의 19 대 522.9평방미터(이하 이 사건 분할전 토지라 한다) 지상에 1980.9.4. 브록조 슬라브지붕 평가건 주택 및 근린생활시설 1동 건평 75.54평방미터를 신축하여 소유하고 있던 중 1992.10.6. 이 사건 분할전 토지에서 같은동 1724의29 대 133평방미터(이하 이 사건 토지라 한다)를 분할한 다음 같은달 9. 이 사건 토지부분만을 소외 김ㅇ조에게 매도하고, 같은날 소외인 명의로 소유권이전등기를 마쳐준 사실, 이에 피고가 1994.3.16. 원고에 대하여 이 사건 토지의 양도에 따른 양도소득세를 별지 과세내역서 기재와 같이 결정하여 이를 부과고지한 사실을 각 인정할 수 있고, 달리 반증이 없다.
2. The Plaintiff, on the land before the partition of this case, had been holding for not less than 10 years, was a building with a size of 75.54 square meters, and was subject to the special long-term possession deduction up to five times the floor area of the building, and thus, 96.06 square meters (75.54 x 133/52.9 x 5) as equal to the ratio of the land in the land before the partition of this case, shall be deemed as the building site subject to the special long-term possession deduction, while the Defendant imposed the instant tax disposition without deducting it, which is unlawful.
However, Article 23 (2) 2 of the Income Tax Act provides that the amount equivalent to 10/100 of gains on transfer shall be deducted in cases where the holding period is five to ten years. 10/100 of gains on transfer if the holding period is ten or more years, and the land as prescribed by the Presidential Decree pursuant to Article 23 (2) 2 of the Enforcement Decree of the Income Tax Act means the land attached to a building site and a building, which exceeds the area calculated by multiplying the floor area of the building by the rate (five times the land within an urban planning zone, and ten times the land outside an urban planning zone) pursuant to Article 15 (9) of the same Decree, which excludes the special deduction for long-term holding of the building from the total floor area of the building in excess of 7 meters. According to the purport that the special deduction for long-term holding of the building in excess of 9 meters is excluded from the special deduction for long-term holding of the building in excess of 5 meters, even if the building is constructed in installments.
Therefore, it is legitimate for the Defendant to calculate the tax amount without making the special long-term holding deduction for the portion of the instant land as stated in the attached tax statement in the instant taxation disposition. Therefore, the Plaintiff’s assertion that the instant taxation disposition is unlawful is groundless.
3. Thus, the plaintiff's claim of this case seeking revocation on the premise that the taxation disposition of this case is unlawful is without merit, and it is dismissed. It is so decided as per Disposition.
June 29, 1995