If the amount of income of a parking lot exceeds 3% of the land value, the amount of income of the parking lot shall be the land for non-business use if the period of taxation exceeds 2 years in the three years

In determining the ratio of the amount of land value to the land value of the disputed land, "land value" shall be calculated based on the total area used as a parking lot.

Article 168-11 (1) 2 of the Enforcement Decree of the Income Tax Act

2013 old-gu 5276 Revocation of Disposition of Rejecting Capital Gains Tax;

IsaA

Head of Mapo Tax Office

October 17, 2013

October 31, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's rejection disposition against the plaintiff on July 24, 2012 against the plaintiff is revoked.

1. Details of the disposition;

A. On February 12, 1990, the Plaintiff acquired an OB BB, 4032 site No. 4032, 742.5 square meters (hereinafter referred to as "former BB BB, 4032") from among 11,574.9/11,57.75/9, 403 square meters of the same 403 square meters (hereinafter referred to as "former BB, 4033") 4,547.75/9/11,574 and 4034 square meters of the same 4034 square meters (hereinafter referred to as "former BB, 4034"), and merged each of the above land into OB, 11,574.9/75 square meters (hereinafter referred to as "former BB, 4034") and 4034 square meters of the same site.

B. On March 23, 2010, the Plaintiff: (a) transferred the instant land to the largestCC and four others; and (b) deemed the said land as non-business land to be subject to the long-term possession special deduction; and (c) filed a preliminary return and payment of capital gains tax for the year 2010 on May 31, 2010; (b) thereafter, on June 5, 2012, the Plaintiff filed a request for correction to the Defendant by applying the special deduction for long-term possession, while the instant land constitutes a business land.

C. Accordingly, on July 24, 2012, the Defendant notified the Plaintiff of his rejection of the Plaintiff’s request for correction on the ground that the instant land does not fall under the “other land used for business” under Article 168-11 of the Enforcement Decree of the Income Tax Act, but falls under the “land for non-business use” under Article 104-3 of the Income Tax Act and the

D. On September 4, 2012, the Plaintiff appealed and filed an objection on September 4, 2012. The Defendant, as to "former BB Dong 4032", is reasonable to view that 396 square meters among them as land for business, the Defendant revoked the disposition of refusal of correction exceeding the legitimate tax amount by revising the tax base and tax amount of capital gains tax, and as to "former BB Dong 4033 and 4034" (hereinafter "the pertinent land"), the Plaintiff dismissed the objection based on the premise that the disposition of refusal of correction on the premise that it falls under the non-business land is justifiable (hereinafter "the instant disposition") (hereinafter "the instant disposition").

Facts that there is no dispute over recognition, Gap 1-6 evidence, Eul 1-6 evidence (including paper numbers), and the purport of the whole pleadings.

2. The assertion and judgment

A. The plaintiff's assertion

Of the co-owners of the instant land, a joint parking lot business was operated solely on the land corresponding to the Plaintiff and NaD’s share. Since the taxable period exceeding 3% of the land price (individually announced land price) exceeds 2 years among 3 years in the immediately preceding taxable period prior to the transfer date, the amount of the parking lot income exceeds 2 years among 3 years in the immediately preceding taxable period, it should be viewed as the land for business use. Nevertheless, the Defendant calculated the land price based on the total size of the instant land, including the shares of other co-owners (EE) and determined that the amount of the parking lot exceeds 3% of the land price does not exceed 2 years among 3 years in the immediately preceding taxable period prior to the transfer date is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) The sum between the Plaintiff and NaD’s share in the land is 14.14m2 as shown in the table 1, the sum of the land value calculated under Article 168-11(1)2(c) of the Enforcement Decree of the Income Tax Act and the Plaintiff’s share in NaD’s land. However, in light of the Plaintiff’s business registration details, the area of the workplace (parking) is indicated as 2247.37m2. Accordingly, the Plaintiff appears to have used not only the Plaintiff’s share in BD but also the shares of other

Subject to Table 1, the area of shares owned by the Plaintiff and NaD in the instant workplaces

(unit: Site size)

Parcel Number

The total area

Equity (4,547.75/11,574.9/11,57)

BD Share Area (11,574.9/1204)

Total

Gu BB Dong 4032

742.5

291.73

7.23

368.96

Gu BB Dong 4033

389.3

152.95

40.49

193.44

Gu BB Dong 4034

1,865

732.75

193.99

926.74

Total

296.8

1,177.43

311.71

1489.14

In addition, the key land of this case and the 'BB Dong 4032' are connected land and owned jointly by the plaintiff, NaD and EE for each land lot number. Among them, under the situation that the shares of the plaintiff and NaD are not only half of the total share of the land, it would be impossible to accurately divide the key land of this case into the plaintiff and NaD's share and use it for separate purposes. In addition, in the cadastral map and the aerial photography, the whole land of this case appears to have been used as a parking lot without a separate partition, the key land of this case cannot be deemed to have been used as a parking lot. Thus, in determining the ratio of the amount of income to the land value compared to the land value of the key land of this case, the "land value" should be calculated based on the total area used as a parking lot.

Therefore, when calculating the income ratio as above, the key land of this case is less than 3% of the income ratio as shown in the table 2 below, and it shall be deemed land for non-business use. Therefore, the plaintiff's assertion on a different premise is without merit.

Table 2. The ratio of annual income amount of parking lot to land value.

Classification

2007

208

209

Land value

OOOE

OOOE

OOOE

Revenue amount

OOOE

OOOE

OOOE

The revenue ratio

1.96%

1.57%

1.83%

2) The calculation of the amount of income in the case of calculating only the shares owned by the Plaintiff and NaD as "land value"

In the application of subparagraph 11 (c) of Article 168-11 (2) and (3) of the Enforcement Decree of the Income Tax Act, if the income amount of one taxable period is related jointly to the relevant land, etc. and thus the actual reversion cannot be separated, it shall be calculated according to the following formula:

* Income amount of one taxable period related to the land in question = Income amount of one taxable period

Amount of income for one taxable period related jointly to the relevant land, etc. and other land, etc. ¡¿ (Value of relevant land in the relevant taxable period ¡À Aggregate of value of relevant land and value of other land in the relevant taxable period).

The above provision is a provision to strictly separate only the revenues accruing from the pertinent land to apply the land for business in determining the land for business, and considering that the purpose of legislation, which prescribes the land for non-business, is basically a non-business land for the purpose of suppressing speculation, but only in cases falling under the listed provisions, the benefit such as exclusion from heavy taxation is strictly granted by regarding the land for business, the above purpose of legislation shall be equally applied to determining the amount of income of the pertinent land for business

In this case, in applying Article 168-11 (1) 2 (c) of the Enforcement Decree of the Income Tax Act, if only the shares owned by the Plaintiff and NaD are calculated as land value, the amount of income of the business place should be determined as to whether the amount of income also exceeds 3% on the basis of the amount of land value corresponding to the shares of NaD owned by the Plaintiff that registered the parking lot business among the total land value and the Plaintiff that registered the parking lot business. Therefore, if the amount of income is calculated as above, as shown in Table 3, the annual amount of income of the parking lot compared to the land value does not exceed 3%.

Table 3. The annual income ratio of parking lot compared to land value.

Classification

2007

208

209

Land value

OOOE

OOOE

OOOE

Revenue amount

OOOE

OOOE

OOOE

The revenue ratio

1.96%

1.57%

1.83%

3. Conclusion

Thus, the plaintiff's claim is dismissed as it does not appear to be any mother or there is no ground.