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(영문) 수원지방법원 2015. 06. 09. 선고 2014구합4093 판결
이 사건 각 토지의 양도로 인한 소득은 양도소득이 아닌 사업소득이라고 보아야 함[국승]
Title

Income from the transfer of each land of this case shall be deemed business income, not capital gains.

Summary

Since it is reasonable to deem that the transfer of each of the instant lands was made as part of the business activities aimed at the Plaintiff’s profit, income from the transfer of each of the instant lands should be deemed as business income, not capital gains.

Related statutes

Article 77 of the Restriction of Special Taxation Act: Reduction or exemption of transfer income tax on land for public works

Cases

2014 Gohap4093 Revocation of the imposition of global income tax

A set development project on the wind which part of each land is expropriated as a site for public works by the Ministry of National Defense;

(1) The land of this case was transferred to a third party to a third party as it is impossible to continue normally.

Therefore, income from the transfer of each real estate of this case is not business income but business income.

applicable.

2) The Plaintiff’s design service cost, district unit planning service cost, site placement fee while carrying out the Liart development project.

A total of KRW 1,353,00,000 has been disbursed for expenses for investigation, various advisory expenses, etc.

Since expenses are incurred for the alteration, improvement or convenience of use of each land of this case, which is assets of this case

Therefore, each of the instant dispositions, which served as the basis for calculating the tax amount of the instant disposition, should be deemed necessary expenses.

The amount equivalent to the necessary expenses shall be additionally deducted from the transfer value of land.

3) Of each of the instant lands, part of the land expropriated as a site for public works by the Ministry of National Defense is the same as the Plaintiff.

Since the land acquired before two years retroactively from the date of the public announcement of the following business, the tax characteristics of the Gu;

Article 77 of the Restrictions Act (Amended by Act No. 12251, Jan. 14, 2014; hereinafter the same shall apply)

The amount of capital gains tax to be reduced or exempted shall be reduced or exempted.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) As to the first argument

Income from the transfer of real estate is business income or transfer income under the Income Tax Act.

acquisition and holding of real estate by a person, whether the person has been created, the scale and frequency of the transfer, the appearance, the other party, etc.

Whether the transfer aims at profit and to the extent that it can be seen as business activities;

Determination according to social norms by taking into account whether continuity and repetition have been made; determination thereof;

corporation, as well as the transferor's possession of such transferred real estate.

All circumstances surrounding the time of transfer of real estate throughout the whole real estate shall be considered;

must be (see, e.g., Supreme Court Decision 2012Du7370, Mar. 13, 2014).

Based on the above legal principles, the health class No. 2, No. 1, No. 5, and No. 9

The following circumstances may be known in accordance with the purport of each statement and all pleadings, i.e., the Plaintiff

As a real estate sales businessman between 2003 to 2005, '00 system' or 'BB construction'.

Business registration has been made, and each of the instant lands has been transferred from June 15, 2008 to June 2012, 2012, which was around the time of transfer.

10. Business such as sale of real estate, vicarious sale of real estate, consignment management, etc. under the trade name "BB construction" until May 15;

(2) From 2000 to 2012, the Plaintiff included each of the instant land and total area.

The plaintiff acquired 101 real estate and transferred 134 real estate during the above period.

period of holding real estate per unit is less than two years and six months average, and other plaintiff's objection;

In full view of the acquisition and transfer of each land, the circumstances before and after the transfer, etc., of each land

It is reasonable to deem that the transfer was performed as part of the business for the Plaintiff’s profit.

As such, income from the transfer of each land of this case shall be deemed business income, not capital gains.

Therefore, this part of the Plaintiff’s assertion is without merit.

2) As to the second argument

The purpose of the whole pleadings and arguments is to write Gap evidence 2, Eul evidence 3 through 5, and Eul evidence 10.

under the following circumstances, i.e., the subject of the instant resort development project, not the Plaintiff:

주식회사 BB디벨로퍼(2013. 7. 24. 주식회사 00000오브챌린지로 상호변경됨, 이

n) Various design and district unit systems concluded in the course of the implementation of the project;

The services contract for writing, feasibility study, etc. was conducted in the name of the non-party company;

(2) Before the development activities on each of the instant lands were fully carried out in full scale.

any development activity that has been revoked and increases its value on each of the above lands;

In full view of the fact that there is no finding of the Plaintiff’s land transfer, the Plaintiff’s transfer of each of the instant land.

As such, the Plaintiff’s assertion on this part cannot be deemed as having paid necessary expenses as alleged in this part.

Plaintiff and appellant

Fixed00

Defendant, Appellant

GG Head of the tax office

Text

1. The plaintiff's appeal is dismissed.

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

The disposition of imposition of global income tax of KRW 1,390,192,357 imposed on the Plaintiff on April 15, 2013 by the former Cheong-gu Defendant on April 15, 2013 is revoked.

Reasons

1. Details of the disposition;

가. 원고는 @@시 @@면 @@리 2016 일대의 종합레저시설인 00시티 리조트조성 사업과 관련하여 00환경농업영농조합으로부터 2007. 2.경 별지 목록 제1 내지 5, 7, 8, 10 내지 15, 17 내지 41항 기재 각 토지를 3,029,300,000원에, 2008. 4.경 별지 목록 제6, 9, 16항 기재 각 토지를 1,262,730,000원에 각 매수하여 이를 취득하였다(이하 원고가 위와 같이 취득한 별지 목록 기재 각 토지를 '이 사건 각 토지'라 한다).

B. The Plaintiff: (a) around June 8, 2009, from around December 9, 2009 to around December 9, 2009, sold to the Ministry of National Defense 2,679,440,000 each parcel of land listed in [Attachment List 14 to 12 lots of land listed in [Attachment List 14 to 25 to the same Kim before September 10, 2009; and (b) around December 17, 2009, each parcel of land listed in [Attachment List 26] to 223,560,000 won; (c) from October 7, 2009 to December 23, 2009 to 223,560, and (d) from October 7, 2009 to December 23, 2009 to 410 to 410,400,50 each piece of land.

C. The Plaintiff estimated global income in 2009 by applying simple expense 79.9% to global income tax base and tax amount based on the premise that income equivalent to the gains from the transfer of each of the instant land falls under the transfer income subject to separate taxation, and reported and paid KRW 591,431,320 to the Defendant on May 31, 2010.

D. However, the Defendant reported and paid as global income tax the larger of the tax amount under Article 64(1)1 of the former Income Tax Act (wholly amended by Act No. 12169, Jan. 1, 2014; hereinafter the same) and the tax amount under Article 64(1)2 of the same Act (the global income tax amount calculated by applying the profit margin rate of each land of this case to the global income tax base and the amount calculated by deducting the above profit margin from the global income tax base; hereinafter the same shall apply) under Article 64(1)2 of the same Act, which is a special provision for calculating the tax amount on real estate sales businessman, on the ground that the Plaintiff, a real estate sales businessman, filed and paid the global income tax in violation of the above provision, on April 15, 2013.

E. On June 28, 2013, the Plaintiff filed an appeal with the Tax Tribunal. On February 25, 2014, the Tax Tribunal rendered a decision that “The Defendant’s imposition of global income tax on April 15, 2013 by applying the general under-reported penalty tax rate (10%), which is not an unfair under-reported penalty tax rate (40%), to rectify the relevant tax base and tax amount, and dismiss the remainder of the appeal.”

F. According to the above decision of the Tax Tribunal, the Defendant reduced the Plaintiff’s global income tax amount to KRW 449,254,086 by applying the Plaintiff’s global income tax assessment rate for the year 2009, and corrected the Plaintiff’s global income tax amount to KRW 449,254,086. As a result, the global income tax amount for the year 2009 for which the Plaintiff should additionally pay was reduced to KRW 1,390,192,357 (= KRW 1,612,483,320 – - (671,5,545,049 – KRW 449,254,086) (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 2, and 6 (including provisional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

1) The Plaintiff acquired each of the instant land for the initial resort development project, but thereafter, thereafter;

shall not be effective.

3) As to the third argument

Article 77(1) of the former Restriction of Special Taxation Act provides that "income accrued from the transfer or expropriation of land, etc. necessary for public works and from the transfer on or before December 31, 2015, which is acquired on or before December 31, 2015 retroactively from the date of public announcement of project approval, an amount equivalent to 20/100 of capital gains tax shall be reduced or exempted." Since the provision on reduction or exemption for the transfer of land, etc. for public works under the above provision is only the object of capital gains tax, the said provision may not be extended or analogically applied to cases where global income tax is imposed on the transfer of the said land, etc. (see, e.g., Supreme Court Decision 95Nu9778, Jul. 8,

As seen earlier, income from the transfer of each of the instant lands is subject to global income tax that is acquired from real estate sales business, and thus cannot be subject to reduction or exemption under the said provision. Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

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

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