비사업용 토지로 보는 기간기준을 모두 충족하여 비사업용 토지에 해당함[국승]
The early 2011 High Court 0131
land for non-business use by meeting all the criteria for the period deemed land for non-business use;
For two years from the date of acquisition of land, the construction period can not be regarded as the period used for business, since the construction works, including civil engineering works, are commenced only when the construction works are commenced, and the construction works are not constructed on the land.
Article 104-3 of the Income Tax Act
Article 168-6 of the Enforcement Decree of Income Tax Act
2011Gudan24708 Revocation of Disposition of Imposing capital gains tax
CHAPTER A
Samsung Head of Samsung Tax Office
March 9, 2012
April 13, 2012
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The Defendant’s disposition of imposition of capital gains tax of KRW 000 against the Plaintiff on November 4, 2010 is revoked (it is apparent that it is a clerical error of November 4, 2010 as stated in the written complaint’s claim).
1. Grounds for the disposition
A. On July 28, 200, the Plaintiff acquired at KRW 000,000, 00-0, 000-0, 1,860-0, and 000-0,414 square meters (hereinafter collectively referred to as “the instant land”) from O0,000, and transferred at KRW 1,000,000, and paid KRW 00,000,00,000, calculated by applying the general tax rate by deeming the instant land as the “business” and deeming it as the “business.”
B. On November 4, 2010, the Defendant: (a) calculated the period during which the Plaintiff was engaged in the construction to use the instant land for business purposes; (b) deemed the instant land as “non-business use”; and (c) accordingly, issued the instant disposition to impose capital gains tax of KRW 000 by applying the heavy taxation rate of 60%.
[Ground of recognition] Facts without dispute, entry of Eul's evidence Nos. 1 to 3, purport of the whole pleadings
2. Whether the disposition is lawful;
A. Summary of the plaintiff's assertion
The Plaintiff agreed to set up a multi-family house on the instant land, but the instant land did not adjoin the existing road and could not obtain a construction permit. To establish an access road to the instant land from the Sinjin-gun on September 15, 2005, the Plaintiff started construction to enter the instant land under direct management after obtaining approval for use for agricultural infrastructure (divities) from the Sinjin-gun on September 15, 2005. On May 2006, the Plaintiff started construction of the instant land under direct management until July 26, 2006 after obtaining a permit for conversion of mountainous district and change of the form and quality of land. Since consultation with the neighboring residents on the instant land was inevitable on August 14, 2007, it constitutes a non-business-based construction contract with the specialized construction business entity on August 14, 2007, and the construction work commenced on July 28, 2008, and thus, it should not be deemed that it was unlawful for the Plaintiff to use the instant land for non-business purpose.
(b) Related statutes;
It is as shown in the attached Form.
C. Determination
Since the Plaintiff’s assertion that the construction work was not carried out for 2 years or longer after the date of the transfer of 20 years or more (including the date of construction work before and after the date of the transfer; hereinafter the same shall apply) and Article 168-6 subparag. 1 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 2034, Feb. 18, 201; hereinafter the same shall apply), if the ownership period of the land is more than 5 years, the period exceeding 1 year before the date of the transfer is more than 7 years, and the land which was not carried out for 20 years or less is not used for 4 years or more because it is deemed that the construction work was carried out for 10 years or more since the date of the commencement of the construction work for 2 years or more, it constitutes a non-business land for which the construction work was carried out for 3 years or more, and thus it constitutes a non-business land for which the construction work was carried out for 10/100 or less.
3. Conclusion
Thus, the plaintiff's claim is dismissed as it is without merit.