Seoul High Court 2013Nu3971 (Seoul High Court 2013.09.11)

Examination Transfer 2011-0288 (20 January 20, 2012)

The period during which the prohibition or restriction of use has occurred due to the enactment of the Ordinance shall not be deemed to have been used as non-business land.

"Land which is not used for business due to justifiable reasons, such as changes in urban planning after the acquisition of the land, includes the land whose new use has been prohibited or restricted by the enactment of the ordinance of the local government after the acquisition of the land, and the project is not limited to the project for its original purpose.

Income Tax Act

Supreme Court Decision 2013Du21557 ( October 13, 2014)

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○ Head of tax office

Seoul High Court Decision 2013Nu3971 Decided November 201, 2013

201.24

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. 구 소득세법(2009. 6. 9. 법률 제9763호로 개정되기 전의 것，이하 '법'이라고 한다) 제95조 제2항, 제104조 제1항 제2호의7은 비사업용 토지의 양도에 대하여는 장기보유 특별공제를 배제하도록 규정하고 있다. 한편 법 제104조의3 제2항，구 소득세법 시행 령(2009. 12. 31. 대통령령 제21934호로 개정되기 전의 것) 제168조의14 제1항 제3호 의 위임을 받은 구 소득세법 시행규칙(2010. 4. 30. 기획재정부령 제154호로 개정되기 전의 것, 이하 '시행규칙'이라고 한다) 제83조의5 제1항은 그 각 호에서 양도소득세가 중과되는 비사업용 토지에 해당하는지 여부를 판정할 때 당해 토지를 비사업용으로 사 |한 것으로 보지 아니하는 기간에 관하여 규정하면서' 제12호에서 '당해 토지를 취득 한 후 도시계획의 변경 등 정당한 사유로 인하여 사업에 사용하지 아니하는 토지의 경 우에는 당해 사유가 발생한 기간'을 들고 있다.

In light of the language and purport of these regulations, “land not used for business due to justifiable grounds, such as modification of urban planning” under Article 83-5(1)12 of the Enforcement Rule refers to land, the use of which is exceptionally restricted beyond the ordinary limit according to the purpose of land due to alteration of urban planning, etc., and whether it falls under such restriction shall be based on the principle of the restriction on the use of land according to its original purpose, and the purpose of land acquisition, actual use status, possibility of change of its original purpose, etc. shall also be determined individually (see Supreme Court Decision 2010Du18543, Oct. 24, 2013).

On the other hand, Article 20 [Attachment 1] Item 1 (c) of the former Ordinance on the Urban Planning of Seocheon City (repealed by the Gyeonggi-do Ordinance No. 1973, Nov. 1, 2003) enacted by Ordinance No. 1812, Jan. 12, 2001, is attached Table 1] Article 20 [Attachment 1] subparagraph 1 (c) of the former Ordinance on the Urban Planning of Seocheon City (amended by the Ordinance No. 1973, Nov. 2, 2003), land of which the standing timber main water does not exceed 50% (40% in green areas) and land of which the slope level does not exceed 15 degrees, and land of which the 75 meters high

Article 19 of the Seocheon City Urban Planning Ordinance (hereinafter referred to as the "Ordinance") enacted on August 11, 2003 also stipulates that "the change of the form and quality of land may be permitted by taking into account the height of neighboring roads, water drainage, etc." (hereinafter referred to as the "Ordinance of this case") shall also be the same purpose.

2. The court below acknowledged that ① the Plaintiff donated the land of this case, which is forest land, from the GLA on July 13, 1991, to the GLA, which was the land of this case. ② The land of this case was prohibited from development activities, such as construction of a new building after the enactment of the municipal ordinance of this case, as a green area with a height of 100 meters or more, and with a slope of 30 degrees or more, and the new construction of a new building was prohibited. ③ However, before the enactment of the municipal ordinance of this case, the surrounding area of this case was already designated and developed as a 'small Housing Site Development Zone,' and the apartment complex was also constructed in a place similar to the land of this case. ④ The Plaintiff owned the land of this case with the donation of this case and transferred it to the school foundation BBA on December 30, 209, and determined that the land of this case constitutes a legitimate land of this case from 20 to 30 on January 12, 2001.

앞서 본 법리와 기록에 비추어 살펴보면，원심의 위와 같은 판단은 정당하고, 거기에 상立이유로 주장하는 바와 같이 비사업용 토지의 범위에 관한 법리를 오해하는 등의 위 법 이、없다.

3. Therefore, the appeal is dismissed, and the cost of appeal is assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.