Revocation of disposition imposing capital gains tax

The key land is not only the land category in the public register but also the farmland was cultivated as farmland at the time of transfer. Thus, even if the construction, etc. was restricted by the district unit planning zone decision, it is not prohibited or restricted to use or cultivate the land as farmland. Thus, it cannot be viewed as a “land, the use of which is prohibited or restricted under the Act and subordinate statutes.”

The contents of the judgment are the same as attachment.

2017Gudan9153 Revocation of Disposition of Imposing capital gains tax

IsaA

BB Director of the Tax Office

on October 04, 2018

on October 25, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s refusal to rectify capital gains tax for the year 2014, which belonged to the Plaintiff on December 23, 2016, is a disposition of refusal against the Plaintiff.

255,461,944 won shall be revoked.

1. Basic facts

(1) On January 13, 1976, the Plaintiff: ○○○-dong 121-1, 700 square meters (hereinafter “non-point land”);

The same 121-2 square meters in the same field, 561 square meters in the same field, 121-3 528 square meters in the same field, and 121-4 561 square meters in the same field (hereinafter collectively referred to as the above 3 lots together), were transferred as follows, and the land outside the issue is subject to the special deduction for long-term holding, and the issue land is subject to the special deduction for long-term holding, and was reported and paid KRW 959,768,169 in the transfer income tax for the year 2014 by excluding the special deduction for long-term holding.

The Plaintiff’s land at issue on October 21, 2016 is prohibited or restricted by law.

As such, special long-term holding deduction is deemed excluded from the scope of non-business land, issues;

The reduction or exemption of capital gains tax shall be applied respectively by deeming that the land and the land other than the issues fall under 'self-farmland' in 8 years.

In 2014, 413,374,601 of the transfer income tax reverted to the 2014 claim for correction was filed.

Consolidatedly, the defendant on December 23, 2016, with respect to the plaintiff on December 23, 2016, long-term possession special deduction of the disputed land and the

and the disposition of this case which refuses the above request for correction on the ground that the person is not subject to reduction or exemption.

AB made it.

x. The plaintiff is dissatisfied with the disposition of the instant case and the plaintiff is tried to the Tax Tribunal on March 31, 2017 by filing an objection.

Although the Tax Tribunal filed a request for the purchase, it dismissed the said request on August 8, 2017.

facts without dispute over the basis of recognition, Gap evidence 2, Gap evidence 3-1, 2, 3, 4, and Gap evidence 4-1,

2, 3, Eul evidence 1, 2, the purport of the whole pleadings

2. Judgment on the assertion

(1) As seen in the relevant laws and regulations, the former Income Tax Act (No. 12852, Dec. 23, 2014) (No. 12852)

Pursuant to Article 95(2) of the Act, capital gains from land shall be calculated.

When calculating, if the relevant land is for non-business land under Article 104-3 of the same Act, its holding;

Even if the period is at least three years, no special deduction for long-term holding shall be obtained.

Article 104-3 of the former Income Tax Act provides that ① the land for non-business use, which meets certain requirements for the period prescribed by Presidential Decree during which the relevant land is owned (main sentence of paragraph (1)), the relevant land is subdivided into farmland, forest land, stock farm land, and other land (each subparagraph of paragraph (1)), and each of the requirements is prescribed as one of the land for non-business use. However, as prescribed by Presidential Decree, the exception is provided for farmland for which the period prescribed by Presidential Decree has not elapsed from the date when the owner resides in the location of the farmland and cultivated himself/herself, as prescribed by Presidential Decree, and ② In applying paragraph (1), where the relevant land falls under any subparagraph of paragraph (1) due to the prohibition of use of the land by law after its acquisition or due to other inevitable reasons prescribed by Presidential Decree, it may not be deemed the land for non-business use (paragraph (2)), and ③ In applying paragraphs (1) and (2), necessary matters concerning the scope of the land for non-business use, etc. shall be prescribed by Presidential Decree.

Article 168-6 and Article 168-14 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 25945, Dec. 30, 2014; hereinafter the same) have detailed provisions concerning the criteria for determining non-business land, etc., as seen in the relevant Acts and subordinate statutes based on the delegation basis of the former Income Tax Act.

She, the Plaintiff continued to do so while residing in a location where he acquired the key land.

The key land was transferred to an urban area (commercial area) according to the decision of a district unit planning zone.

It was incorporated and designated as a special planning zone in accordance with the guidelines for the establishment of district unit planning;

Ro, because development activities, such as architecture, have become unusable, Article 104-3 (2) of the former Income Tax Act;

Prohibition of or restriction on the use under the Act and subordinate statutes under Article 168-14(1)1 of the Enforcement Decree of the Tax Act.

The case is subject to special deduction for long-term holding, because the land was excluded from non-business land.

Part excluding special long-term holding deduction for the land at issue in the disposition, i.e., a transfer office for the year 2014

It argues that the part equivalent to KRW 255,461,94 of the disposition of refusal to correct this tax should be revoked.

Referencely, it is legitimate that the defendant excluded the special long-term holding deduction for the key land while rendering the disposition of this case, and the plaintiff's assertion pointing out its illegality is without merit.

According to Article 104-3(1) of the former Income Tax Act and Article 168-6 of the former Enforcement Decree of the Income Tax Act, if the ownership period of land is not less than five years, the period exceeding two years from the five years immediately preceding the date of transfer, the period exceeding one year from the three years immediately preceding the date of transfer, and the period exceeding 20/10 of the ownership period of the land, and the period exceeding 20/10 of the ownership period, are all satisfied the requirements of the main sentence of Article 104-3(1)1 (b) of the former Income Tax Act.

The key land has been incorporated into an urban area (commercial area) on May 15, 2002 according to the district unit planning zone decision of May 15, 2002, and so far, there is no dispute between the parties concerned, or the overall purport of the pleadings in the evidence Nos. 2, No. 3, No. 4, and No. 5, and the land at issue is the Plaintiff who has been used and cultivated as farmland not only at the time of transfer, but also at the time of transfer. Ultimately, the land at issue was incorporated into an urban area on May 15, 200 as farmland. The land at issue was transferred to the urban area on December 5, 2014 after the two years from the date of incorporation, which is the grace period prescribed by Presidential Decree, and failed to meet the requirements under the proviso of Article 104-3 (1) 1 (b) of the former Income Tax Act, and Article 168-8 (6) of the former Enforcement Decree of the Income Tax Act.

Furthermore, the Plaintiff acquired the pertinent land on January 13, 1976 and transferred it only on December 5, 2014, even though it was incorporated into an urban area (commercial area) upon the determination of a district unit planning zone on May 15, 2002. It is clear that the Plaintiff was incorporated into a residential area during the period corresponding to both “the period exceeding two years out of five years immediately preceding the date of transfer, the period exceeding one year out of three years immediately preceding the date of transfer, the period exceeding one year out of three years immediately preceding the date of transfer, and the period exceeding 20/100 of the period of land ownership,” and therefore, it constitutes a non-business land under Article 104-3(1)1 (b) of the former Income Tax Act, and thus, constitutes the subject of exclusion of special long

○ Article 104-3(1) of the former Income Tax Act stipulates that whether the land constitutes a non-business land, namely, farmland, forest land, stock farm land, and building land, etc., shall be subdivided into land for the use of the land and its requirements are prescribed. In applying Article 104-3(2) of the former Income Tax Act, where the land falls under any of the subparagraphs of paragraph (1) due to prohibition of use under the law after the acquisition of the land or other inevitable reasons prescribed by Presidential Decree. In other words, Article 104-3(2) of the former Income Tax Act provides that "where the land falls under any of the subparagraphs of paragraph (1) on the premise that the land falls under any of the subparagraphs of paragraph (1) shall be subject to the exception of paragraph (1) on the premise that the use of the land falls under any of subparagraphs of paragraph (1) of Article 104-3(2) of the former Income Tax Act, on the ground of delegation as above, Article 168-14(1) of the former Income Tax Act provides for the period of prohibition or limitation.

In light of the language and purport of the aforementioned provision, “land, the use of which is prohibited or restricted pursuant to the Act and subordinate statutes” under Article 168-14(1)1 of the former Enforcement Decree of the Income Tax Act refers to land, the use of which is specially restricted beyond the ordinary limit according to its use. It is reasonable to view that not only the land, the use of which is prohibited or restricted directly by the provision itself, but also the land, the actual use of which is prohibited or restricted by an administrative agency as part of an administrative action, is uniformly controlled by the building permit, etc. as part of the provision of the Act and subordinate statutes, and whether it constitutes such a case shall be based on the principle of restriction on the use of the land according to its original purpose. However, the purpose of acquiring the land and the actual use of the land, the possibility of changing its original purpose, etc. should also be determined individually (see Supreme Court Decision 2011Du1425, Oct. 31, 2013). Therefore, it can be deemed that the use of the land, in principle, constitutes a special restriction on use.

In this case, since the land at issue was cultivated as farmland at the time of transfer as well as the land category registered in the public record, even if construction, etc. was restricted by the district unit planning zone decision, the original purpose of the land at issue, i.e., the original purpose of the land, i.e., the prohibition or restriction of use or cultivation as farmland, and thus, it cannot be seen as "land, the use of which is prohibited or restricted pursuant to the laws and regulations" under Article 104-3 (2) of the former Income Tax Act and Article 168-14 (1) 1 of the former Enforcement Decree of the Income Tax Act. If it is interpreted that the transfer of the land at issue as the plaintiff's assertion constitutes "land, the use of which is prohibited or restricted pursuant to the laws and regulations" under Article 104-3 (2) of the former Income Tax Act and Article 168-14 (1) 1 of the former Enforcement Decree of the Income Tax Act, which is excluded from non-business land under the proviso to Article 104-3 (1) 1 (b) of the former Income Tax Act.

3. Conclusion

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