Cho High Court Decision 201J 0057 ( October 10, 2011)

It is applicable to the special taxation provisions only when transferred to the authorized person at the time of transfer.

In an urban planning facility project, special taxation provisions shall apply only to the transfer of real estate to a person who has obtained authorization of an implementation plan in advance, except in extenuating circumstances, such as the designation of a project implementer, and if the implementation plan is not authorized at the time of transfer,

2011Guhap6784 Disposition of refusal to correct capital gains tax

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port of origin

November 9, 2011

November 30, 2011

1. The plaintiff's claim is dismissed.

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

The defendant's rejection disposition against the plaintiff on August 3, 2010 against the plaintiff shall be revoked.

1. Details of the disposition;

A. On February 2, 200, the Plaintiff acquired and owned 172,562m2 (hereinafter “the instant land”) of the O200 m2, Echeon-si, Hocheon-si, Hocheon-si, Seoul Special Metropolitan City, and transferred the purchase price of KRW 3,654,000,000,000 to BBrit Co., Ltd. (hereinafter “non-party company”) on June 30, 2006.

B. On August 31, 2006, the Plaintiff calculated gains from transfer as the actual transaction price of the instant land to the Defendant, and paid KRW 705,396,650 for the transfer income tax accrued in 2006.

C. On May 25, 2010, the Plaintiff filed an application for rectification of transfer income tax for the year 2006 on the ground that the Plaintiff may calculate transfer margin based on the standard market price, on the ground that the instant land was transferred to a business operator under Article 85 of the Restriction of Special Taxation Act (amended by Act No. 8146, Dec. 30, 2006; hereinafter the same).

D. On August 3, 2010, the Defendant rejected the Plaintiff’s request for correction of the transfer income tax on the ground that the Nonparty Company, the transferee of the instant forest, was not designated as a public project operator and was not subject to Article 85 of the Restriction of Special Taxation Act (hereinafter “instant disposition”).

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on December 10, 2010, but was dismissed on March 10, 201.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 8 (including branch numbers, if any)

the purport of the whole of the pleadings as set forth in No. 1

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although a non-party company was designated as a project implementer for an urban planning facility project on April 21, 2008 after the Plaintiff transferred the instant land, in light of the legislative intent of Article 85 of the Restriction of Special Taxation Act, etc., it is reasonable to view that the aforementioned provision applies to the transfer of the instant land to the project implementer before the designation of the project implementer and the authorization of the implementation plan after the project implementer was granted the actual designation and the authorization of the implementation plan within the urban planning facility project zone.

(b) Fact of recognition;

(1) The land of this case was designated as an area designated on May 29, 2004 pursuant to Article 104-2(1) of the Income Tax Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter the same).

(2) On April 2, 2006, the non-party company entered into a service contract with the non-party company on the person and permission business of the golf course development project, and from May 4, 2006, the non-party company submitted the residents' proposal on the urban planning facilities (sports-member golf course) to the non-party company in the Leecheon-si, Dong-si, Eup, and the OOri group, including the land in this case, three times from May 4, 2006, the non-party company was required to accept the above proposal on February 8, 2007 and submit the written urban management plan to the non-party company. After accepting the residents' proposal of the non-party company, the Gyeonggi-do branch decided and publicly announced the urban management plan (decision on the amendment of the urban planning facilities) under the Gyeonggi-do Notice No. 2007-000 on Nov. 19, 207.

(3) On April 21, 2008, the Leecheon-cheon City approved and publicly notified the implementation plan of the urban planning facility project (sports facility: golf course) project that is a non-party company after undergoing the resident inspection procedure.

[Ground of recognition] Facts without dispute Gap's evidence Nos. 10 and 11-1, 2.3 No. 12-17, 3, and the purport of the whole pleadings

(c) Related statutes;

Attached Form is as shown in the attached Form.

D. Determination

(1) Article 85 subparag. 5 of the former Restriction of Special Taxation Act and Article 79-2 subparag. 2 [Attachment 7] of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 1988 of Feb. 28, 2007) provides that a person who is not the project implementer before and after the implementation plan is transferred to the project implementer under the same Act shall be entitled to special taxation for the acquisition of real estate within the designated area under the provisions of Article 104-2 subparag. 1 of the former Income Tax Act (amended by Act No. 942 of Feb. 6, 2009; hereinafter referred to as the “National Land Planning Act”) and the Minister of Land, Transport and Maritime Affairs shall establish a special taxation for the transfer of real estate to the project implementer under the same Act without the authority of the Special Metropolitan City Mayor/Do Governor before the approval of the implementation plan and the transfer of real estate to the project implementer under the same Act without the authority of the Mayor/Do Governor. Meanwhile, Article 86(5) of the National Land Planning Act provides that the transfer price and acquisition price shall be determined.

(2) However, according to the above facts, even before the Plaintiff transferred the instant land to a non-party company, it was preparing the said business by entering into a service contract for permission and related persons for urban planning facility business, but it was prior to obtaining authorization for the implementation plan, and thus, the transfer of the instant land is not subject to the special taxation provisions of this case, and the instant disposition based on such premise is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.