Early High Court Decision 2009Du2670 ( October 28, 2010)

No land, the use of which is prohibited merely because it is publicly announced as a buffer green area, shall be deemed restricted;

Since the designation of a full-scale green area of land is prohibited from constructing a new building and can be used for its original purpose, which is a "finite", it is difficult to see that the cultivation itself is prohibited or restricted by the relevant Acts and subordinate statutes, so a disposition imposed on the transfer of non-business

The contents of the decision shall be the same as attached.

Gangwon ○

Head of Ansan Tax Office

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of KRW 107,199,210 for the Plaintiff on April 1, 2009 shall be revoked.

1. Details of disposition;

A. On July 29, 2003, the Plaintiff received a successful bid for KRW 2,00,100,000 and completed the registration of ownership transfer on December 29, 2003 from the Plaintiff, ○○○○-dong, ○○○○-dong, 400-4, 992 square meters (hereinafter “400-4”) and 11 lots (hereinafter “○○-dong land”) and buildings on the above ground, which are sold at ○○○-dong, ○○○-dong, ○○○-dong, ○00,000.

B. On September 4, 2007, the above 400-4 land was divided into the same 400-4 m247 m2, the same 400-5 m201 m201 m2, the same 400-5 m201 m201 m2, the same 400-6 m201 m2, and the same 400-7 m23 m23 m2 (hereinafter “the same 400-7 m2”).

C. On October 5, 2007, the Plaintiff: (a) transferred the instant land to △△△△△ on October 5, 2007 (the transfer registration on October 26, 2007); and (b) on June 2, 2008, on the transfer margin, reported the transfer income tax by applying the general tax rate to the land for business.

D. On April 1, 2009, the Defendant issued a correction and notification of KRW 107,19,210 to the Plaintiff on the ground that the instant land constitutes non-business land (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 30, 2009, but was dismissed on January 28, 2010.

[Reasons for Recognition] The purport of the whole pleadings as stated in Gap's Evidence Nos. 2, 3, 6, 8, 14, 18, Eul's Evidence Nos. 1, 2 and 3 (including each number)

2. Whether the dispositions of the instant case are legal.

(a)the plaintiff's principal;

Since the Plaintiff could not use the instant land for business pursuant to statutes after acquiring the instant land, the instant land does not constitute land for non-business purposes. The instant disposition that the Defendant deemed the land for non-business purposes and excessive capital gains tax was unlawful.

B. Key statutes

As shown in the attached Form (the year of personal time revision shall not be indicated).

C. Determination

1) According to Articles 104(1) and 104-3(1)1 of the Income Tax Act, Articles 168-8(3)5 and 168-14(1) of the Enforcement Decree of the same Act, and Article 6(2)10 of the Farmland Act, land for non-business use is subject to transfer income tax by applying the tax rate of 60/100 of the tax base to the land for non-business use. ② Land for non-business use is farmland for which the owner does not reside in the location of his/her farmland or does not cultivate himself/herself; ③ Land for non-business use falls under land due to the prohibition of use due to the provisions of law or other inevitable reasons prescribed by the Presidential Decree after its acquisition, it shall not be regarded as land for non-business use for the period of

2) The key issue of the instant case is whether the Plaintiff acquired the instant land and did not use it for the Plaintiff’s business constitutes “where the use is prohibited or restricted pursuant to the law after acquiring the land, that is, whether it constitutes “where the use is prohibited or restricted pursuant to the law.”

According to Gap evidence Nos. 2, 3, 4, 6, 8, and 17 (including each number), it can be acknowledged that △△ Corporation expropriateds the land of this case for public works on September 18, 1987 and sells it to the plaintiff on August 19, 2003, and the plaintiff tried to use the land of this case for the plaintiff's business (non-agriculture) but failed to use it.

On the other hand, the following facts are also acknowledged in light of the overall purport of the arguments in Gap evidence Nos. 16, Eul evidence Nos. 6 and 7 (including paper numbers).

① The land category of this case is the answer, the land category of which was designated as a buffer green belt on March 3, 1984, and is now designated as a buffer green belt on March 3, 1984. ② A buffer green belt is a green belt installed for the prevention of air pollution, noise, vibration, malodor and other high seas corresponding thereto, various accidents, natural disasters and other disasters corresponding thereto, etc., but it is possible to use it for any other purpose than the original purpose of designation, but the act of entering into a buffer green belt or selling a dry field or dry field on his own for the purpose of farming. ③ According to the taxation statement of the aggregate land tax in 2004 and 2005 on the land of this case, the land category on the public register of this case is the land of this case, but it is a site.No) The plaintiff did not attempt to acquire the land of this case and use it as a response, but did not use it.

In addition to the circumstances that the Plaintiff had already been designated as buffer green areas prior to the acquisition of the instant land, and the Plaintiff’s use of the instant land as a land category on the public account book in addition to the circumstances where there is no legal restriction, it is insufficient to recognize that the instant land constitutes “a case where the use of the instant land is prohibited or restricted pursuant to the statutes after acquiring the instant land,” and there is no other evidence to

Therefore, the Plaintiff’s assertion that the use of the instant land was not prohibited or restricted pursuant to statutes after acquiring the instant land, is without merit, and the instant disposition is lawful.

3. Conclusion

If so, the plaintiff's claim for objection case is without merit, it shall be dismissed.