Jeonju District Court-2017-Guhap-2025 (No. 18, 2018)

Cho-2017-B-1397 (2017.07)

The land in this case does not correspond to the land for non-business and the excessive appropriation of sales allowances is legitimate.

The land in this case does not fall under the "land not deemed land for non-business due to unavoidable reasons" as prescribed by the relevant Acts and subordinate statutes, and the non-deductible disposition is legitimate because the allowances were excessive.

Criteria for determining land not deemed non-business land due to unavoidable reasons under Article 46-2 of the Enforcement Decree of the Corporate Tax Act, such as the scope of forest land under Article 92-6 of the Enforcement Decree of the Corporate Tax Act for capital gains on transfer income

Gwangju High Court (formerju)-2018-Nu-2280 ( October 17, 2019)

Co., Ltd. 000

00. Head of tax office

2019.06.12

2019.07.17

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 imposing corporate tax of KRW 60,311,000 for the business year 2014 against the plaintiff on December 19, 2016 and corporate tax of KRW 41,453,30 for the business year 2015 shall be revoked.

1. Whether the subsequent appeal of this case is lawful

A. The Defendant was well aware that the instant lawsuit was pending by the Plaintiff, and the representative director of the Plaintiff appeared at the last date for pleading of the first instance court and was notified that the sentencing date was July 18, 2018. As such, the instant appeal filed on October 31, 2018 after the lapse of three months during which the appeal period was filed.

this defense is unlawful.

나. 기록에 의하면, 원고가 소장에 원고의 주소를 '00시 00로 125-23, 2층'으로 기재하였고 위 주소로 제1심법원의 보정명령 등본과 피고의 답변서 부본이 송달된 사실, 하지만 원고가 2017. 10. 11. 제출한 보정서에 첨부된 원고 법인등기사항증명서에는 원고의 본점 주소가 '@@시 @@동4길 8-5, 501호 (00동, 00주택)'으로 나와 있었고, 원고가 2018. 5. 15. 제출한 당사자표시정정신청서에는 원고 대표이사의 주소가"00시 00구 00로52번길 19"로 기재된 사실, 위 소장 및 당사자표시정정신청서에는 원고 대표이사의 전화번호가 기재된 사실, 그럼에도 제1심법원은 판결정본에 관하여 위 소장 주소지로 1차례 송달을 시도한 후 송달불능이 되자 그 송달불능 사유가 폐문부재로서 피고에게 송달할 장소를 알 수 없는 경우에 해당된다고 보기 어려움에도 불구하고 더 이상 송달을 시도해보지 않고 위 전화번호로도 연락을 시도해보지도 않은 채 바로 공시송달의 방법으로 판결정본을 송달한 사실을 알 수 있다.

C. Thus, even if the representative director received the final argument in the first instance and failed to meet the requirements for service by public notice, it is reasonable to view that even if the first instance judgment is scheduled, the judgment is expected to be served at least by the plaintiff to the address of the head office or the address of the representative director stated in the application for correction of the indication of the party, which is written in the certificate of corporate registration submitted by the plaintiff.

A claim against the judgment of the first instance court of this case on October 18, 2018 for the reason that the plaintiff cannot be held liable until he/she directly receives the original copy of the judgment in the first instance court on October 18, 2018, which was relatively far from the above sentencing date.

It should be deemed that the plaintiff could not observe the period of lawsuit, and even if the plaintiff could not observe the period of lawsuit due to the plaintiff's failure to immediately identify the progress of the trial immediately after the original scheduled date of the trial, it can be attributable to the plaintiff.

The defendant's main defense is without merit.

2. Quotation of judgment of the first instance;

The reasoning for this Court is as stated in the reasoning for the judgment of the court of first instance, except where the plaintiff makes a further decision as to the argument that the plaintiff is dissatisfied with this Court.

Article 8 (2) of the Court Litigation Act and the main sentence of Article 420 of the Civil Procedure Act shall be quoted as it is.

3. Additional determination

A. The plaintiff's assertion

According to Article 55-2 (3) of the Corporate Tax Act, Article 92-11 (1) 3 of the Enforcement Decree of the same Act, and Article 46-2 (1) 5 of the Enforcement Rule of the same Act, in the case of land acquired and started for construction of land on which buildings have not been settled on the ground, it is excluded from the non-business land for two years from the date of its acquisition, and construction means not only construction but also civil engineering works. Thus, even if the land acquired a site as the Plaintiff and only civil construction works and infrastructure works on the site without constructing a new building on the site, it can be seen as "the case where construction

B. Determination

(1) Of corporate tax on capital gains for non-business land under Article 5-2 (1) 3 of the Corporate Tax Act, the legislative purpose of this case lies in preventing speculative demand for land by classifying the transferred land as non-business land without using it for productive purposes according to its actual demand (see Supreme Court Decision 2010Du17281, Oct. 25, 2012). (2) Article 46-2 (1) of the Enforcement Rule of the Corporate Tax Act provides that the land which falls under any of the following subparagraphs shall not be deemed to fall under any of the subparagraphs of Article 55-2 (2) of the Act, and its construction period shall not be deemed to fall under the category of land for non-business purpose, and its construction period shall not be deemed to fall under the category of land for non-business purpose under Article 5-1 (1) 3 of the Enforcement Decree of the Corporate Tax Act, and its construction period shall not be deemed to fall under the category of land for non-business purpose.

4. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be this.

As to the conclusion, the plaintiff's appeal is just and without merit. It is so dismissed as per Disposition.

The decision shall be rendered as above.