Seoul Administrative Court 2010Gudan23630 ( October 27, 2011)

National Tax Service Review and Transfer 2010-0155 (Law No. 23, 2010)

It is applicable to special taxation regulations only when owners of land, etc. obtain authorization of implementation plan.

Special provisions can only apply to cases where a landowner transfers real estate to a person who has obtained authorization of an implementation plan in an urban planning facility project implemented by a landowner, etc., and where a landowner, etc. fails to obtain authorization of an implementation plan at the time of transfer,

2011Nu17143 Dispositions to revise or reject capital gains tax

XX

Head of Yongsan Tax Office

Seoul Administrative Court Decision 2010Gudan23630 decided April 27, 2011

September 21, 201

November 9, 2011

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's rejection disposition against the plaintiff on February 11, 2010 against the plaintiff shall be revoked.

1. cite the judgment of the first instance;

The reasoning of this Court is as follows: “1 basic facts; 2. Whether the instant disposition is legitimate; the reasoning of the first instance court’s judgment until the Plaintiff’s assertion (from the second second to the third second second to the final reduction of the judgment of the first instance). The reasoning of this Court’s judgment is cited in accordance with Article 8(2) of the Administrative Litigation Act; and Article 420 of the Civil Procedure Act.

2. A new part.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 85 subparag. 5 of the former Restriction of Special Taxation Act (amended by Act No. 8146 of Dec. 30, 2006) and Article 79-2(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19888 of Feb. 28, 2007) provide that where a resident calculates a transfer (including expropriation) of real estate within a designated area under Article 104-2(1) of the former Income Tax Act (amended by Act No. 8852 of Feb. 29, 2008) by acquiring the real estate within the designated area under Article 104-2(1) of the National Land Planning and Utilization Act (amended by Act No. 9861 of Dec. 29, 2009; hereinafter referred to as the "National Land Planning Act") before the approval date of an implementation plan under Article 91 of the National Land Planning and Utilization Act, the provisions of this case provide for the special taxation of transfer value and acquisition value (hereinafter referred to "standard").

Meanwhile, Article 86(5) and (7) of the National Land Planning and Utilization Act, Article 96(3) of the Enforcement Decree of the National Land Planning and Utilization Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 20535, Jan. 8, 2008; hereinafter the same) provides that a landowner, etc. may implement an urban planning facility project by being designated by the Minister of Land, Transport and Maritime Affairs, the Mayor/Do Governor, the head of a Si/Gun, or the head of a Gun, and Article 88(1) and (2) of the National Land Planning and Utilization Act provides that an implementor shall prepare an implementation plan for an urban planning facility project and obtain authorization from the Minister of Land, Transport and Maritime Affairs, the Mayor/Do Governor, or the Mayor of a large city, and Article 95 provides that a landowner, etc. may expropriate or use land, buildings, or fixtures necessary for an urban planning facility project. Article 133(1)15 of the National

Considering the language and text of the aforementioned provision and the following, the instant special taxation provision may apply only where a landowner, etc. transfers real estate to a person who has obtained authorization of an implementation plan in the urban planning facility project implemented by the landowner, etc., unless there are special circumstances, such as being designated as a project implementer. In cases where a landowner, etc. did not obtain authorization of an implementation plan at the time of transfer, the instant special taxation provision is not applicable even if an implementation plan was obtained later (see Supreme Court Decision 2009Du1408

① The legislative intent of the special taxation provisions of this case is to recognize the authority to expropriate real estate to a project implementer under the National Land Planning and Utilization Act, and even if the transferor transfers real estate to a project implementer, the decision-making authority on the transfer value shall be restricted, so that transfer value and acquisition value may be based on the standard market price, thereby relaxing transfer income tax burden

(2) In principle, it is impossible to implement the urban planning facility project without obtaining authorization of the implementation plan under Article 88 of the National Land Planning and Utilization Act.

(3) Where a landowner, etc. wishes to become a project implementer, he/she is specifically finalized only when he/she obtains authorization of an implementation plan with a project implementer designated as a project implementer pursuant to Article 86(5) of the National Land Planning and Utilization Act, barring special circumstances, such as obtaining the designation of a project implementer, and it is difficult to specify the project implementer before the implementation plan is authorized, and it is difficult

④ Even in cases where real estate is transferred to a landowner, etc. before obtaining authorization of an implementation plan, the requirements for reduction and exemption as stipulated in the special taxation provisions of this case are unclear, because the base point of time is unclear.

(5) Article 88 of the National Land Planning and Utilization Act provides that a project implementer designated by the Minister of Land, Transport and Maritime Affairs, etc. under the National Land Planning and Utilization Act may obtain authorization of an implementation plan in order to continue the implementation of a project. As such, Article 88 of the National Land Planning and Utilization Act can only be construed as providing the general procedure for applying for authorization of an implementation plan, including the above cases in the context before and after the implementation plan, and it is difficult to deem

(3) At the time of the transfer of the instant real estate, the non-party company did not obtain authorization of the implementation plan, and was not designated as a project implementer in advance. The non-party company cannot be deemed as a project implementer stipulated in the

3. Conclusion

The appeal is dismissed.