Plaintiff (Attorney Hwang Young-ok, Counsel for the plaintiff-appellant)

The head of Yangcheon Tax Office

August 24, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 73,296,720 against the Plaintiff on December 1, 2009 shall be revoked.

1. Details of the disposition;

A. On August 4, 1970, the Plaintiff acquired and owned 453 square meters (hereinafter “instant land”) miscellaneous land in Gwanak-gu, Seoul Special Metropolitan City, and sold the instant land to a voluntary auction on October 18, 2007. The Plaintiff did not report the transfer income tax on the transfer of the instant land.

B. On December 1, 2009, the Defendant: (a) deemed the instant land as a miscellaneous land and excluded the special long-term holding deduction; and (b) imposed and notified capital gains tax of KRW 73,296,720 on the Plaintiff on December 1, 2009 by applying the heavy taxation rate of 60%.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 7, 12, and Eul evidence 1

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Since the land category of the instant land is miscellaneous land, and its actual status is forest land, when determining whether the instant land for non-business use is forest land, it shall be deemed forest land.

However, since the Plaintiff owned more than 20 years prior to December 31, 2006 and transferred the instant land before December 31, 2009, the instant land does not constitute land for non-business use pursuant to Article 104-3 (2) of the former Income Tax Act (amended by Act No. 8825, Dec. 31, 2007; hereinafter “Act”) and Article 168-14 (3) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008; hereinafter “Enforcement Decree”).

In addition, the instant land is not designated as a park area, but is actually used as an urban natural park, such as there is an urban natural park in the vicinity, so it does not constitute a land for non-business use as a forest within an urban park under Article 104-3 (1) 2 (a) of the Act and Article 168-9 (1) 5 of the Enforcement Decree.

(2) Although the Plaintiff filed an application for development of the instant land several times, the application for development was rejected by the Gwanak-gu Office on the ground that the instant land is located in the natural green area, and since the instant land has been subjected to 50% tax reduction or exemption by the Gwanak-gu Ordinance as the land for public facilities, the instant land does not constitute non-business land on the ground that “the land falls under any inevitable cause as prescribed by the Ordinance of the Ministry of Finance and Economy, taking into account the statutory restrictions due to public interest or inevitable reasons, the current status of the land, the reason for its acquisition, or the current status of the land use, etc.” under Article 168-14(1)1 of the Enforcement Decree or Article 168-1

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The instant land was designated as a natural green area on April 29, 1966, and was adjacent to the area of the Masan Urban Natural Park, and the land category was the site at the time of the Plaintiff’s acquisition, but the land category was changed to miscellaneous land on May 15, 1978 upon ex officio examination by the Gwanak-gu Office.

(2) On April 21, 2006, the Plaintiff applied for permission for land transaction contract of this case to the head of Gwanak-gu Office with the Nonparty who was seeking to purchase the land of this case as a material warehouse. At the time, the head of Gwanak-gu at the time, one side of the land of this case is cut off, and there is a little slope in part within the land, and it is improper to newly use it as a material warehouse due to the installation of rainwater, and it is reasonable to treat it as a result of the permission after prior to the permission for development, such as changing the form and quality, etc., and the Plaintiff did not apply for permission for development of the land of this case to the head of Gwanak-gu Office.

(3) 이 사건 토지의 가운데 부분에는 등산로와 배수로가 있고, 그 남쪽과 북쪽으로 급경사면이 있는데, 급경사면은 모두 잡초와 넝쿨식물로 뒤덮여 있으며, 이 사건 토지의 남쪽 경계면 부근에는 어린 소나무 4그루가 식재되어 있고, 이 사건 토지의 서쪽 경계 부근에는 느티나무로 보이는 나무가 있다.

[Ground of recognition] Each entry of Gap evidence Nos. 2, 5, and 10 (including paper numbers), the result of the on-site inspection by this court, the result of fact-finding by the head of Gwanak-gu in this Court

D. Determination

(1) 먼저, 이 사건 토지의 현황이 임야라는 원고의 주장에 관하여 살피건대, 앞서 본 바와 같이 이 사건 토지는 등산로, 배수로, 잡초 및 넝쿨식물로 뒤덮인 급경사면으로 이루어져 있고, 이 사건 토지의 경계 부근에 나무 몇 그루가 있기는 하나, 그것만으로는 이 사건 토지의 현황이 임야라고 볼 수 없으므로, 원고의 위 부분 주장은 이유 없다.

(2) Next, the following is examined as to whether the instant land constitutes “land, the use of which is prohibited or restricted pursuant to the laws and regulations after acquiring it,” and as seen earlier, the Plaintiff’s application for permission for a land transaction contract cannot be deemed as “land, the use of which is prohibited or restricted pursuant to the laws and regulations after acquiring it,” and there is insufficient evidence to acknowledge it solely by the descriptions of evidence Nos. 14 and 18, and there is no other evidence to acknowledge it.

In addition, the land of this case falls under any subparagraph of Article 83-5 (1) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 71 of April 14, 2009), but there is no evidence to acknowledge it. Thus, the plaintiff's assertion on the above part is without merit.

(3) Therefore, the instant disposition based on the premise that the instant land constitutes non-business land is lawful, and the Plaintiff’s above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment Form 7]

Judges Cho Min-soo