Seoul Administrative Court 2010Gudan804 ( October 22, 2010)

Seocho 209west 1275 ( October 23, 2009)

land for non-business use other than land for parking lot operation;

Even if land was created as a parking lot, as long as it was provided for use by neighboring residents without compensation, it is difficult to regard it as land for the operation of a parking lot under the Income Tax Act. Furthermore, there is no evidence to recognize that the head of Si/Gun has received permission or report of an off-road parking lot at the

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked, and the defendant revoked the imposition of capital gains tax of KRW 294,365,647 (including additional tax) for the plaintiff on August 4, 2008.

1. Details of the disposition;

A. On April 27, 1998, the Plaintiff owned 00,000 square meters of ○○○○○○○○-dong 964-3 site 163.5 square meters (hereinafter “the land of this case”) by inheritance from the Dong branchA, the husband of the Dong, and transferred 80,000,000 won to the non-B and five other persons on April 25, 2007.

B. On May 11, 2007, the Plaintiff transferred the instant land to the Defendant on May 11, 2007, the transfer value is KRW 446,35,00 according to the standard market price, and the acquisition value is KRW 215,820,00 according to the appraised value of the inherited property, and paid the transfer income tax by voluntary declaration KRW 39,476,890.

C. On August 9, 2007, the Defendant issued a notice of increase in capital gains tax of KRW 12,099,271 on the ground that the Plaintiff filed a return by erroneously applying the special long-term holding deduction to the Plaintiff (the first corrective disposition), and the Plaintiff paid the said tax amount.

D. On August 4, 2008, the Defendant: (a) calculated gains on transfer based on the actual transaction price on the ground that the instant land constitutes land for non-business use; (b) applied the tax rate of 60% to the Plaintiff; and (c) increased the transfer income tax of KRW 317,50,340 (including additional tax on negligent tax returns of KRW 23,134,693, additional tax for arrears of KRW 5,204,893) and notified the Plaintiff of the increase or decrease (the second corrective disposition)

E. On December 12, 2008, the Plaintiff appealed against the second corrective disposition, and the Defendant partially accepted the Plaintiff’s objection and corrected the amount of KRW 23,134,693 for additional tax returns on negligent tax returns (Therefore, the transfer income tax for the Plaintiff on August 4, 2008, which was ultimately paid by the Defendant to the Plaintiff on August 4, 2007, was KRW 294,365,647 (including additional tax for unfaithful 5,204,893; hereinafter referred to as “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 8, 11, 12, Eul evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff purchased the land of this case as a residential housing site without the purpose of speculation, and around July 198, the plaintiff and neighboring residents completed construction costs and used it as a free parking lot thereafter, and since around December 2004, it is not a non-business land since it was used for the business of operating a pay parking lot, such as receiving monthly parking fees from neighboring residents, so the disposition of this case in this case is unlawful on different premise, and the disposition of this case in this case is not a non-business land.

B. Relevant statutes

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

C. Determination

(1) Whether land is used for parking lot

Article 168-11 subparagraph 2 (c) of the Enforcement Decree of the Income Tax Act refers to the land which is owned by the person operating a parking lot operation business as prescribed by Presidential Decree, and is used as an off-road parking lot under the Parking Lot Act, and the ratio of annual income to the value of the land used as an off-road parking lot exceeds the ratio provided by Ordinance of the Ministry of Strategy and Finance.

On the other hand, an off-road parking lot is a parking lot installed in a place other than the surface of a road and a traffic plaza, and Article 12 (1) of the former Parking Lot Act (amended by Act No. 4230 of Apr. 7, 1990) provides that "off-road parking lot shall be installed by the head of a Si/Gun having jurisdiction over the relevant urban planning district in accordance with the plan for the installation of an off-road parking lot in a parking lot improvement zone, and the head of a Si/Gun having jurisdiction over the relevant urban planning district in an urban planning district shall install it in accordance with the urban planning plan, and Article 12 (2) provides that "off-road parking lot may be installed with permission from the head of a Si/Gun under the conditions as prescribed by the Presidential Decree, notwithstanding the provisions of paragraph (1). An off-road parking lot smaller than the size prescribed by the Presidential Decree may be installed after reporting to the head of a Si/Gun/Gu and the head of a Gun/Gu having jurisdiction over the installation of an off-road parking lot shall notify the installation or the installation standards.

In light of the contents and purport of the above provisions, the Plaintiff’s land to be used as an off-road parking lot under the Income Tax Act is merely a land for which the value of the land was used for the business under the off-road parking lot, and the ratio of the amount of income for one year to the value of the land is at least 3/100 of the officially assessed land price. Furthermore, to be recognized as the above off-road parking lot, prior to the amendment of the Parking Lot Act on February 8, 1999, the Plaintiff must complete permission or report to the head of the Si/Gun and notify the head of the Si/Gun of the installation after the amendment of the above Act. Therefore, even if the Plaintiff prepared the parking lot construction work with neighboring residents around July 198 and used the land as a free parking lot, it is difficult to view the Plaintiff’s land as the land for the use of the off-road parking lot under the premise that it was offered to the head of the Si/Gun for the use of the off-road parking lot under the Income Tax Act for 20% or more for the use of the above land.

(2) Additional payment for arrears

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, a taxpayer’s intentional and negligent act is not considered as administrative sanctions imposed in accordance with the law in cases where a taxpayer violates a tax return and tax liability, etc. under the law without justifiable grounds, and a taxpayer’s intentional and negligent act does not constitute justifiable grounds. Moreover, even in cases where a taxpayer has filed a tax return in violation of the tax law because he/she believed a tax official’s wrong explanation and failed to perform his/her duty to report and pay taxes, or the taxpayer has filed a tax return in violation of the tax law because he/she did not know of the tax law, such circumstance alone does not constitute a case where a justifiable reason exists (see, e.g., Supreme Court Decision 200Du5944, Apr. 12, 2002).

With respect to the instant case, it cannot be deemed that there exists a justifiable reason for violating the tax liability solely on the grounds that the Defendant did not know that the instant land constitutes a non-business land after taking into account only the long-term holding deduction for the Plaintiff’s initial return and payment, but later made the second correction disposition on the ground that the instant land constitutes a non-business land, or that the Plaintiff did not know that the increased tax amount should be paid. Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.