National Tax Service Review and Transfer 2012-0105 (Law No. 18, 2012)

No land for a grave project shall be deemed a land for business purposes.

Although a grave exists on the land, it is difficult to view that the land could not be utilized due to the site for electric power supply, which was the original purpose of acquisition due to the extremely small grave in light of the area of the land, and it cannot be deemed that the entire land was provided for the use of the grave. Therefore, the disposal based on the land

2012Gudan1867 Revocation of Disposition of Imposing capital gains tax

KimAAAA

Deputy Director of the Tax Office

May 7, 2013

June 4, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant imposed a transfer income tax of KRW 000 on March 1, 2012, which was imposed by the Plaintiff on the Plaintiff, and the imposition disposition of KRW 000 as of January 4, 201, respectively, shall be revoked.

1. Details of the disposition;

A. On July 31, 2002, the Plaintiff, KimO, and KimO (hereinafter referred to as “Plaintiff, etc.”) acquired 33,214m2 (hereinafter referred to as “instant land”) in proportion to 1/3 shares, and divided into several parcels, and then transferred 13,67m2 among them to OO corporation on January 17, 201.

B. On March 201, the Plaintiff reported to the Defendant the tax base of capital gains tax on the land transferred out of the instant land, and reported and paid KRW 000 as capital gains tax by applying the special deduction for long-term holding under the premise that the instant land is a business land.

C. Accordingly, on March 1, 2012, the Defendant deemed that the instant land constitutes non-business land, and excluded the special taxation system for long-term possession, and notified the Plaintiff of the correction and notification of KRW 000 (including additional taxes) of the transfer income tax for the year 2011, and on November 26, 2012, the Defendant revoked the disposition of KRW 000 equivalent to the additional tax from the disposition of the said transfer income tax, and notified the Plaintiff of the additional tax of KRW 000 on January 4, 2013, stating the type of additional tax and the basis for calculation (hereinafter collectively referred to as the “instant disposition”).

[Reasons for Recognition] The facts without dispute, Eul 1-1-3 and 2, and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff et al. acquired the land of this case for the purpose of using it as the site for accommodation facilities, such as electric power houses and contact roads, but it was inevitable to use the land of this case as a cemetery because the 25th grave stand on the land of this case, and the land of this case constitutes the land for business. Therefore, the disposition of this case against the plaintiff by the defendant on the premise that the land of this case

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) In light of the principle of no taxation without law, or the requirement of tax exemption or tax exemption, the interpretation of the tax law is interpreted as the legal text, barring any special circumstances, and it is not allowed to expand or analogically interpret without any reasonable reason, and it is also consistent with the principle of fair taxation to strictly interpret that it can be seen as the provision that is clearly preferential in terms of the determination of the requirements of tax exemption or exemption (see, e.g., Supreme Court Decision 2003Du7392, May 28, 2004).

2) Comprehensively taking account of the entire arguments between Gap 2 through 7 and Eul 3, and the plaintiff, on December 12, 2009, with respect to the eight graves on the land in this case on December 12, 2009, opened the grave as the landowner, and opened the grave on March 12, 2010 after obtaining permission for the relocation from the Sungsung market, and opened the grave on June 30, 2010 on the ground of the delayed burial, and sent the grave on June 8, 200 to the PPPP in order to 0000, the land in this case was located on the land in this case. According to the above facts of recognition, it is difficult to view that the land in this case could not be utilized as the site for the house for the original purpose of acquiring the land in this case due to the eight graves merely due to the size of the land in this case, and it cannot be deemed that the whole land in this case was provided.

3) Therefore, the Plaintiff’s principal head premised on the instant land is land for business use, and the instant disposition is lawful.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed as it is without merit.