Incheon District Court-2016-Gu Partnership-53412 (Law No. 10, 2017)

The forests and fields within the urban area, for which 3 years have elapsed from the date of incorporation into the urban area, shall be the land for non-business use.

The term "forest land for which three years have elapsed since the date of incorporation into an urban area" under the National Land Planning and Utilization Act under the proviso of Article 168-9 (1) 2 of the Enforcement Decree of the Income Tax Act shall apply to the forest land for non-business use.

Scope of land for non-business use under Article 104-3 of the Income Tax Act

Seoul High Court-2017-Nu69856 ( April 25, 2018)

OO

O Head of tax office

2018.03.28

2018.04.25

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s rejection disposition against the Plaintiff on October 12, 2015 against the reduction of KRW 1,694,781,651 out of KRW 5,628,922,160 for the transfer income tax for the year 2015.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

The reasoning for this part of this Court is that the corresponding part of the reasoning of the judgment of the court of first instance (from No. 2 to No. 31) is the same as that of the corresponding part of the reasoning of the judgment of the court of first instance, except for cases of cutting down or adding some contents as follows. Thus, this part is cited as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420

○ The phrase “5,628,822,150 won” in Part 7 of the Second Instance shall be read as “5,628,92,160 won”, and the phrase “from December 4, 2012, according to the designation of an uninhabited island with quasi-defisor conservation” shall be added and the phrase “an abstract loss” in Part 19 shall be read as “damage.”

○ The second page of the second page (before January 25, 2016) "(before being amended by Act No. 13426, Jul. 24, 2015; hereinafter the same shall apply)", "1,694,781.651 won", and "1,694,781,651 won" in the fourth column of the second page shall be amended to "(201. 25)".

○ 3rd 5 to 6th 100, “The grounds for forest ...........” are as follows.

"Judgment that the plaintiff's non-business land falls under non-business land because it is confirmed that the plaintiff was not in a village, and the protection and fostering of the forest, which is the original purpose of the forest, cannot be deemed as falling under the land prohibited or restricted pursuant to the Acts and subordinate statutes because

2. Whether the instant disposition is lawful

The reasoning for this part of this Court is that the corresponding part of the reasoning of the judgment of the court of first instance (from No. 3 to No. 13 to No. 8, and from No. 10 to No. 16) is the same as that of the corresponding part of the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with Article 8(2) of the Administrative Litigation Act, the main text of Article 420 of the Civil Procedure Act

○ The following shall be added under Chapter 5 of the fourth page:

“B. Defendant’s argument”

The forest land of this case does not fall under the "land, the use of which is prohibited or restricted under the statutes after acquiring the land, as it does not directly prohibit or restrict the protection and development of the forest, which is its original usage, and also falls under the "forest land for which three years have elapsed since it was incorporated into an urban area" under Article 168-9 (1) 2 (proviso) of the former Enforcement Decree of the Income Tax Act, and thus the disposition of this case is lawful.

○○ 6th parallel 6th parallel 6th parallel 6th parallel 6th parallel 6th parallel 8th parallel 8th parallel 8th parallel d. "."

○○ 7 8-9 (see, e.g., “land”) parts are dried as follows:

In applying the provisions of Article 168-7 of the former Enforcement Decree of the Income Tax Act, the determination of farmland, forest land, land for stock farms and other land shall be based on the actual status except as otherwise provided for in this Decree: Provided, That where the actual status is unclear, it shall be based on the registration status in the public register;

The part that “the forest of this case is unlawful..........” is deleted and the following is added below the 20th sentence.

Whether it falls under the proviso of Article 168-9 (1) 2 of the former Enforcement Decree of the Income Tax Act

Article 168-9 (1) of the former Enforcement Decree of the Income Tax Act provides that "the forests and fields that are excluded from the non-business land pursuant to the delegation of Article 104-3 (1) 2 (a) of the former Income Tax Act for the public interest or necessary for the protection and development of forests". The subparagraph 2 provides that the forests and fields within the mountainous district under the Mountainous Districts Management Act, which are located within the mountainous district under the Mountainous Districts Management Act and are excluded from the land for non-business purposes after obtaining an approval of the forest management plan under the Forest Resources Act or the forests and fields within the special forest project zone under the Forest Resources Act, shall be classified as one of the forests and fields that are excluded from the land for non-business purposes: Provided, That the term "the forests and fields for which three years have elapsed since the date of incorporation into the urban area under the National Land Planning and Utilization Act (excluding the green conservation zone

However, comprehensively taking account of the overall purport of the pleadings in the statements in Eul evidence Nos. 6, 7, and Eul evidence Nos. 8-1 through 3, it is evident that all of the forest of this case was designated as a natural green area after being incorporated into an urban area on February 15, 192, and that three years have already elapsed from the time of transfer of the forest of this case on May 11, 2015 is apparent.

According to the above circumstances, the prohibition of felling and planting bamboo in the forest of this case, and felling of standing timber, etc. in the forest of this case constitutes a case where the use of the forest of this case is specially restricted beyond the ordinary limit according to the law after the acquisition of the forest of this case, i.e., the forest of this case under the proviso of Article 168-9 (1) 2 of the former Enforcement Decree of the Income Tax Act shall not be deemed to constitute a case where the forest of this case is excluded from the non-business land under the proviso of Article 168-9 (1) 2 of the former Enforcement Decree of the Income Tax Act (Article 104-3 (1) 2 of the former Enforcement Decree of the Income Tax Act). In principle, the forest of this case is a land for non-business, but is excluded from the land of this case only when it falls under the above subparagraph 2(a) through (c). Of the types that are excluded from the non-business land of this case, the forest of this case does not constitute the plaintiff's forest of this case.

(4) The theory of lawsuit

Therefore, the disposition of this case which did not apply the special long-term holding deduction on the ground that the forest land of this case constitutes land for non-business use is legitimate.

○ The second sentence (before January 25, 2016) on the 10th page is “(before January 25, 2016)” (amended by Act No. 13426, Jul. 24, 2015; January 25, 2016).

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and since the judgment of the court of first instance differs from this conclusion, the defendant's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition.