early 2012west0673 (23 April 2012)

The forest land of this case is not the land that started the construction, so it cannot be viewed as the business.

It can be recognized that the site to be minimum enough to maintain the building to be newly built has reached the "Commencement of construction" only after commencement of excavation works or ground-breaking works. However, in this case, it is merely a preparation work necessary for the commencement of construction for the construction of a new building, and it falls under the non-business land.

Scope of land for non-business use under Article 104-3 of the Income Tax Act

2012Gudan17639 Disposition of revocation of imposition of capital gains tax

KimA

O Head of tax office

July 26, 2013

October 11, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's decision that the disposition of imposition of OOO(including additional tax) of capital gains tax belonging to the year 2010 against the plaintiff on October 11, 201 is revoked.

1. Details of the disposition;

A. On July 24, 1989, the Plaintiff acquired OO-gun O-gun O-gun 539-16 and 99,613 square meters of forest land and 9,613 square meters in nine parcels, which were divided from the land of 539-16 in the same Ri, and transferred O-28, 539-29, 539-29, 539-29, 539-29, 539-29, 539-30 forest land and 4,191 square meters (hereinafter “instant land”) to OO-2 on February 10, 2010.

B. The Plaintiff reported and paid KRW OOO of the capital gains tax calculated by deducting the special long-term holding deduction amount from B from the gains on transfer by deeming the transfer of the instant land for business purposes. However, the Defendant, without having resided in the instant land, did not use the instant land as the land for business purposes, excluded the special long-term holding deduction, and subsequently corrected and notified the Plaintiff on October 1, 201, to the exclusion of the special long-term holding deduction.

C. On January 9, 2012, the Plaintiff filed an appeal with the Tax Tribunal, but was dismissed on April 19, 2012.

Facts that there is no dispute over the basis of recognition, entry of evidence A2, the purport of the whole pleadings.

2. The plaintiff's assertion

The Plaintiff promoted the project to build electric housing on seven parcels, including OB, OB, OB, OB, OB, OB, 117, etc.

3. Whether the disposition is lawful;

A. Relevant statutes

It is as shown in the attached Form.

B. Determination

1) According to Article 104-3(1) and (2) of the Income Tax Act and Article 168-6(1) of the Enforcement Decree of the Income Tax Act, if the ownership period of land is not less than five years, it constitutes a non-business land for which no special deduction for long-term holding has been applied to the construction work for more than 20/10 of the five years immediately before the date of transfer, and it may not be deemed a non-business land under the conditions as prescribed by the Presidential Decree if it constitutes a non-business land for which the construction of a new building is not commenced for more than 9 years (see Article 168-14(1)4 of the Enforcement Decree of the Income Tax Act, which is not for the purpose of constructing new buildings for more than 9 years. It is reasonable to view that the new construction of a new building is not for the purpose of constructing new buildings for more than 9 years, and that the new construction of a new building is not for the purpose of constructing new buildings for more than 9 years by considering the legal or inevitable reasons.

2) In the instant case, in light of the aforementioned legal principles, the construction work period cannot be deemed to have commenced the construction of the instant land solely on the ground that the instant land was used for business purposes, on the ground that: (a) the construction of a glusium, which the Plaintiff asserted that the Plaintiff had acquired the instant land from July 24, 1989 to 2001; (b) the construction of a forest road, farmland diversion permission, deforestation, village access road and bridge construction; (c) the development of underground water; and (d) the development of underground water, etc.; (d) the conclusion of a contract for survey design and civil engineering design; (e) the construction of a forest;

Then, the plaintiff had commenced construction works on the land of 203 KimB, Gap 27, Gap 28's evidence Nos. 1, 28's evidence Nos. 1, 34's whole purport and arguments, and the plaintiff's "Ob" between KimB and 3's "Ob" on May 20, 203, about 17-6, and about 8,000's land supply cost per annum, the plaintiff will complete construction works on the land of 3's house, and the construction of the building for 10's house no longer than 50's construction permit, and the plaintiff should actively participate in the construction permit, Kim BO's 2's construction permit, and the plaintiff's "O2's construction permit for 1's construction work for 3's house supply cost," the plaintiff's "O's construction permit for 1's construction work for 3's house supply cost," and the plaintiff's "O2's construction permit for 4's construction work for the same date".

3) Therefore, the Plaintiff’s assertion that the special deduction for long-term holding of land should be applied by deeming two years from the date of acquisition of land and the period of suspension of construction after the commencement of construction as land for non-business, under the premise that the construction was commenced to acquire the instant land on which the Plaintiff had not settled and to use it for business, but the project was suspended

4. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.