사업인정고시일을 기준으로 비사업용토지 여부를 제한하는 규정은 헌법에 위배되지 아니함[국승]
Seoul Administrative Court 2010Gudan27205 ( August 17, 2011)
Seocho 2010Ch237 (Law No. 9.30, 2010)
Provisions that limit the non-business land as of the public notice of project approval do not violate the Constitution.
It is not clearly unreasonable or unfair to limit the scope of land not deemed non-business land or to apply the provisions from the portion transferred in the taxable year to which the enforcement date of the provisions belongs, and it does not violate the principle of tax equality and the principle of substantial taxation without law under the Constitution.
Article 168-14 of the Enforcement Decree of the Income Tax Act
2011Nu32579 Revocation of disposition of imposing capital gains tax
Republic of South Asia XX
Head of the tax office;
Seoul Administrative Court Decision 2010Gudan27205 decided August 17, 2011
February 27, 2012
March 8, 2012
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. The defendant's disposition of imposition of capital gains tax of KRW 000 on December 7, 2009 against the plaintiff on December 7, 200 shall be revoked.
1. Quotation of the reasons for the judgment of the first instance;
The reasons for the judgment of this court are as follows: (a) the reasons for the judgment of the court of first instance are the same as the reasons for the judgment of the court of first instance, except for the Plaintiff’s new assertion and addition of the determination thereof; and (b) accordingly, (c) pursuant
2. The plaintiff's assertion and judgment as to the plaintiff
A. The plaintiff's assertion
Article 168-14 (3) 3 of the Enforcement Decree of the Income Tax Act (hereinafter referred to as "the provision of this case") provides that "the land expropriated pursuant to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects shall not be deemed non-business land before December 31, 2006 or the acquisition date of which is five years before December 31, 2006," and Article 4 of the Addenda of the Enforcement Decree of the Income Tax Act (Presidential Decree No. 21195, Dec. 31, 2008) (hereinafter referred to as "the Addenda of this case") provides that "the amended provisions of Article 168-14 (3) of the Enforcement Decree of the Income Tax Act (hereinafter referred to as "the Addenda of this case") shall apply from the date of entry into force of this Decree (the date of public announcement of approval of the project of this case on December 31, 2008)" shall not be deemed 0 years before the date of entry into force of this case 20 years prior to the date of public announcement.
Although there is no reasonable ground to discriminate against the owner of the land before December 31, 2006 and the owner of the land after the public announcement date of the public announcement date, the public announcement date of the public announcement result in the Plaintiff’s failure to recognize the land as the non-business land. Thus, the part that limits the public announcement date of the public announcement on December 31, 2006 in the provisions of this case to the public announcement date of the public announcement is invalid because it violates the principle of equal taxation and the principle of no taxation without law under the Constitution, and therefore, the provisions of this case must be equally applied to all the owners of the land to be expropriated without distinguishing when the public announcement date of the public announcement is the date of the public announcement. The provisions of this case are applied from the portion transferred to the taxable year to which the public announcement date of the public announcement belongs, and thus the plaintiff is not subject to the latter part of the provisions of this case.
B. Determination
The instant provision provides for land not deemed land for non-business, thereby granting a kind of tax benefits exempt from the application of capital gains tax heavy and heavy tax rates to taxpayers. As such, a wide range of legislative discretion is recognized with respect to the formation of specific contents, such as the establishment of a scope not deemed land for non-business, and therefore, the decision of the legislators should be respected unless it is clearly unreasonable or unfair.
The provision of this case is established for the purpose of supporting the smooth implementation of public projects, and its necessity is recognized. However, the necessity of applying heavy taxation rate to the transfer of real estate for non-business purposes is also recognized, and in order to harmoniously meet the necessity of the above two cases, the scope of land which is not deemed non-business land should be limited to a certain scope. In light of this, as the provision of this case, the scope of land which is not deemed non-business land as of the date of public project approval as to land as of the public project approval, or the application of the provision of this case from the taxable year to which the enforcement date of the provision of this case belongs, such as the Addenda of this case belongs, is not clearly unreasonable or unfair, and the recognition of land which is not deemed non-business land according to such standard is not in violation of the principle of tax equality
The plaintiff's assertion cannot be accepted.
3. Conclusion
The plaintiff's appeal is dismissed for lack of reason.