Cho Jae-chul2010 Before 1258 (2010.07)

The calculation of the acquisition value of forest land is lawful, and the disposition imposed on the forest land as non-business land is legitimate.

In full view of the fact that the calculation of the acquisition value of forest land based on the book value is not significantly deviating from or abusing the scope of discretion, so it cannot be deemed illegal, and that it is insufficient to recognize that the forest is directly related to the business of a corporation directly used for the plaintiff's business by actively utilizing the entire forest as educational facilities.

2010Guhap4676 Revocation of Disposition of Corporate Tax Imposition

An incorporated association ○

○ Head of tax office

o April 13, 201

May 18, 201

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 corporate tax of KRW 463,811,840 against the Plaintiff on January 7, 2010 shall be revoked.

1. Details of the disposition;

A. The Plaintiff, as a non-profit domestic corporation under Article 1 subparagraph 2 of the Corporate Tax Act, was established for the purpose of the education of farmers in around 1968, operated a farmers’ training center, and operated a youth training center under the name of “Juvenile Training Village in △△,” after completing the registration of a youth training facility from September 20, 196.

나. 원고는 1984. 8.경 ○○시 ○○면 ○○리 742-2 외 12필지(742-1, 742-2, 742-3, 743-1, 743-2, 743-3, 743-4, 743-5, 743-6, 산28-4, 산28-23, 산28-24, 산28-25) 334,001㎡를 취득한 후 ○○시 ○○면 ○○리 742-1, 742-2, 742-3 각 지상에 건물 7,778.51㎡를 신축하여 수련시설로 이용하다가(위 토지 및 건물을 통틀어 !이 사건 부동산'이라 한다), 2008. 2.경 학교법인 ◆◆대학교에 이 사건 부동산 중 ○○시 ○○면 ○○리 742-2 외 7필지(742-1, 742-2, 742-3, 743-1, 743-2, 743-3, 743-5, 산28-4) 302,025㎡ 및 그 지상 건물 7,778.51㎡을 매매대금 84억 원에 양도하고, 2008. 6.경에는 박AA에게 이 사건 부동산 중 ○○시 ○○면 ○○리 743-4 외 4필지(743-4, 743-6, 산28-23, 산28-24, 산28-25) 31,976㎡을 매매대금 3억 1,500만 원에 양도하였으나, 그에 따라 납부해야 하는 2008년도 법인세를 신고 ・ 납부하지 아니하였다.

C. Accordingly, the Defendant classified the portion of the instant real estate into real estate for profit-making business, and classified the acquisition value of the instant forest into real estate for profit-making business, and calculated the amount of the land for profit-making business in calculating the amount of income for each business year, based on the book value of the instant forest land for 262,406 square meters (hereinafter “the instant forest”).

D. On April 7, 2010, the Plaintiff filed a request for review with the Tax Tribunal. On September 6, 2010, the Tax Tribunal rendered a decision to dismiss the request.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 5, 10, Eul evidence Nos. 1, 2 through 5, 8, 12 (including each number), video, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① The acquisition value of the forest land of this case shall be the larger amount between the book value under Article 8(2) of the Addenda of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998) and Articles 1 and 21 of the Addenda of the former Corporate Tax Act (amended by Act No. 7838 of Dec. 31, 2005) and the amount calculated as the officially assessed individual land price around January 1, 1991. The defendant should calculate the acquisition value of the forest of this case based on the officially assessed individual land price around January 1, 1991. However, considering the plaintiff's purpose of establishment, educational activity, etc., the defendant should calculate the book value based on the officially assessed individual land price and impose excessive corporate tax on income for the business year. ② The plaintiff has abused the forest of this case to actively use the forest of this case as the place of education and experience, etc., and thus the disposition of this case should be made by classifying it as the land of this case or its discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the calculation of the acquisition value of the forest of this case is unlawful

A) Article 8 (2) of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998) provides that in calculating "income accruing from the disposal of fixed assets, which is one of the income (taxable income) of a non-profit domestic corporation for each business year, the acquisition value of the land and buildings acquired before December 31, 1990, which is not for profit-making business, may be the larger of the book value and the market price (individually announced land price) as of January 1, 1991. Since it is reasonable to view the above provision as a discretionary provision in the interpretation of the language, it can not be deemed as unlawful merely on the ground that the Defendant calculated the acquisition value of the forest of this case on the basis of the book value not based on the officially assessed individual land price as of January 1, 1991. However, in calculating the acquisition value, it can be deemed unlawful only where it is deemed that there is deviation or abuse of discretion in the calculation of acquisition value of the forest of this case.

B) The following circumstances, i.e., the individual land price at the time of January 1, 1991, 690 and 450 won per square meter, while the individual land price at the time of January 1, 1991 was 690 and 450 won per square meter, among the forest land at ○○-ri and 743-1 and 28-4, there were no significant difference between 9,400 won per square meter, and the above neighboring individual land price at 1.5,00 won and 1.5,00 won per 9,000 won and 1.5,000 won per square meter.

2) Whether it is unlawful to deem the forest land of this case as land for non-business use

A) Article 5-2 (1) 3 of the former Corporate Tax Act (amended by Act No. 9267 of Dec. 26, 2008; hereinafter referred to as the "former Corporate Tax Act") stipulates that the tax amount calculated by multiplying the income from transfer of land, etc. by 30/10 shall be paid as corporate tax on capital gains for non-business purposes. Article 55-2 (2) of the same Act stipulates that the land corresponding to the "non-business land" shall be listed in each subparagraph as one of the "non-business land" in principle, and it excludes the "non-business land" listed in each item exceptionally among the forests excluded from the land for non-business purposes. However, the above subparagraph 2 (c) provides that the scope of the forest directly related to the corporation's business is delegated to the Presidential Decree, taking into account the location, use status, possession period, area, etc. of the land for which the Presidential Decree was enacted, and it does not constitute the "non-business land" under Article 27 (1) of the former Enforcement Decree of the Corporate Tax Act.

B) The purpose of Article 55-2 (1) 3 of the former Corporate Tax Act (amended by Act No. 55-2 (1) is to strengthen the corporate tax on capital gains from the transfer of land for non-business use of a corporation. The purpose of Article 55-2 (1) 3 of the former Corporate Tax Act is to strengthen the taxation on land for non-business use of a corporation, and to stabilize the real estate market and recover speculative profits by suppressing the demand for real estate speculation by focusing on a corporation using land for the purpose of property increase without using it for production purposes. Unlike the case of farmland or farm land, Article 55 (2) 2 of the former Corporate Tax Act is to be included in the land for non-business use as a matter of principle in the case of forest land, it is to consider land for non-business use as included in the land for non-business use in principle, and to take a specific method listed only in the case where it is obvious that there is no purpose of speculation in light of the nature of

C) In full view of the contents of the relevant laws and regulations, legislative intent and regulatory structure, etc., in the case of forest land, it is reasonable to view that in principle, forest land constitutes land for non-business use under Article 55-2 (2) 2 of the former Corporate Tax Act, and in the case of forest land, where there are special circumstances that can be excluded from land for non-business use, it may be excluded from land for non-business use. In particular, in the case where it is proved that forest directly related to the corporation's business is not prescribed by the Ordinance of the Ministry of Finance and Economy, it shall be excluded from land for non-business use even if it is not prescribed by the Ordinance of the Ministry of Finance and Economy. In this case, in order to exempt the taxation of corporate tax on capital gains from the forest land

D) As to the instant case, it is insufficient to recognize that the entire forest of this case was directly related to the Plaintiff’s business of a corporation directly used for the Plaintiff’s business by actively utilizing the entire forest of this case as educational facilities, and there is no other evidence to acknowledge it. Rather, in full view of all the circumstances, including the entire area, location, facilities, and use of the instant forest that can be recognized by comprehensively considering the evidence and the entire purport of the pleading, it is difficult to regard the instant forest as the forest that the Plaintiff had to acquire to operate the business, or it is difficult to regard it as the forest directly related to the Plaintiff’s business. Ultimately, the instant forest of this case constitutes a forest as a non-business land under the main sentence of Article 55-2(2)2 of the former Corporate Tax Act, which constitutes a non-business land, and is directly related to the Plaintiff’s business under Article 92-6(4)7 of the former Enforcement Decree of the Corporate Tax Act. Therefore, the Plaintiff’s assertion on this part of the instant forest cannot be justified.

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.