2010west1334 (2010.09.03)

There are reasonable grounds for failure to provide land to the project.

Since land is deemed not to be included in the planned park area due to changes in urban planning, etc. after the acquisition of land, it is deemed that there is a justifiable reason that the land falls under the land prohibited or restricted pursuant to the statutes or fails to provide the land to the project

2010Gudan2442 Revocation of Disposition of Imposing capital gains tax

The two AA

Head of Yeongdeungpo Tax Office

June 14, 2011

August 17, 2011

1. The Defendant’s disposition of imposition of KRW 1,746,587, and KRW 670 against the Plaintiff on March 1, 2010 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On December 24, 1975, the Plaintiff acquired and owned an Odong 379 (hereinafter referred to as “instant land”) and its ground buildings (old buildings) in Jung-gu, Seoul, and transferred the instant land and its ground buildings (new buildings) on April 18, 2008.

B. On July 31, 2008, the Plaintiff reported and paid KRW 1,012,411,030 for the transfer income tax for the year 2008 by regarding the instant land as land for business and applying the general tax rate of 36%.

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C. However, on March 1, 2010, the Defendant applied 60% of the heavy tax rate to the Plaintiff on the ground that “the Plaintiff acquired the instant land located in the Mapo-gu Urban Redevelopment Zone and thus constitutes the transfer of non-business land” and decided to increase the KRW 1,746,587, and 670 to the Plaintiff on March 1, 2010 (hereinafter “instant disposition”).

[Grounds for Recognition] Unsatisfy, Gap evidence 1 to 3 (including each number), Eul evidence 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

After the Plaintiff acquired the instant land, a park planning was newly established under the Seoul Urban Planning Act on April 7, 1976, and thereafter, on February 12, 1980, the instant land was incorporated into a park site due to the alteration of the Seoul Urban Planning Act on February 12, 1980, making it impossible to newly construct and extend a general building on the instant land. Since it becomes possible to construct a conditional building on or around January 2007, the instant land was transferred after the Plaintiff constructed a new building on or around January 2008. Accordingly, even if the instant land does not constitute a non-business land under the Income Tax Act, the instant disposition that was reported differently is unlawful.

(b) relevant statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Designation of redevelopment area, park planning, etc.

(A) On September 6, 1973, the Seoul Jung-gu O-dong 00-0 unit, including the land in this case, was designated as the Seoul Central Urban Planning Act (amended by Act No. 2988 of Dec. 31, 1976, repealed by Act No. 6655 of Feb. 4, 2002) under the old Urban Planning Act (amended by Act No. 367 of Sept. 6, 1973).

(B) However, on April 7, 1976, the Seoul Urban Planning Act was partially amended and decided (No. 46 of the Construction Notice). According to this, 2,878, including O-dong 00-0, Seoul, which is included in the O-dong district under the Seoul Urban Planning Act, was newly designated as the planned park (Dadong park) area.

(C) Since then on February 12, 1980, the location of the park area under the Seoul Urban Planning Multi-dong Park Planning (Seoul Urban Planning) was changed from 00-0 to 2,878 to 1,069, the land in this case was also included in the planned park area.

(2) Plaintiff’s construction process, etc.

(A) On December 24, 1975, the Plaintiff acquired the instant land and its ground buildings (hereinafter “former buildings”) and operated the restaurant.

(B) On April 30, 1983, the Plaintiff tried to construct a new building after the former building was worn on and removed, but the instant land was incorporated into a planned park site, and thus, it cannot be inevitable to construct a new building except for the buildings that meet the purpose of park under the Building Act. On April 6, 1992, the report on the installation of an off-road parking lot was filed on April 6, 1992. The instant land was used for a parking lot operating business, and during that period, the amount of income did not exceed

(C) After that, on June 2007, the head of Jung-gu Seoul Special Metropolitan City revised the "Standards for Building Activities in the District where the urban environment rearrangement project was not performed" and allowed 85 or less buildings on the instant land under conditional permission. Accordingly, around January 2008, the Plaintiff newly constructed a building on the instant land (hereinafter referred to as "new building") on the size of 84 square meters on the instant land.

(D) On April 18, 2008, the Plaintiff sold the instant land and a new building to 6,305,20,000 won in a lump sum to the △ Bank.

[Reasons for Recognition] The above evidence, Gap evidence Nos. 4 through 9, and the purport of the whole pleadings

D. Determination

(1) According to Article 104-3 (1) 4 (c) of the Income Tax Act, Articles 168-6 and 168-11 (1) 2 (c) of the Enforcement Decree of the Income Tax Act, and Article 83-4 (6) of the Enforcement Rule of the Income Tax Act, where the ownership period of the land for parking lots is not less than five years, the land for parking lots shall not be provided for a business for more than one year between five years immediately preceding the transfer date and three years immediately preceding the transfer date, and where the ownership period exceeds 20/100, or where the ratio of the amount of income for one year to the value of the land is less than 3/100, the land for parking lots shall be deemed as land for non-business purposes. However, Article 104-3 (2) of the Income Tax Act provides that the land shall not be deemed as land for non-business purposes as prescribed by Presidential Decree, and Article 168-14 (1) or 4 (1) of the Enforcement Decree of the Income Tax Act provides that the land shall not be used for any inevitable reasons.

(2) According to the above facts as to whether the land in this case is non-business land, it can be viewed as non-business land if the plaintiff used the land in this case for 1st five years or more before the date of the transfer for 2 years or more from the 5th anniversary of the previous five years, and the amount exceeding 3% of the land value during the period exceeding 20 percent of the ownership period of the land. However, the above facts and evidence can be acknowledged as follows: ① the building was constructed on the ground at the time of the plaintiff's acquisition of the land in this case, and the building was removed after its use as restaurant, ② the building was inevitably designated as 'Odong price for the land in this case before the plaintiff's acquisition of the land in this case as 1st 6th 6th 7th 7th 7th 7th 7th 7th 7th 7th 7th 7th 7th 7th 197 7th 197 16th 16th 2th 197.

(3) Therefore, even though the instant land does not constitute non-business land, the instant disposition that reported otherwise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.