It shall not be deemed that the use of land is prohibited or restricted pursuant to the statutes prescribed in Article 168-14 (1) 1 of the former Enforcement Decree of the Income Tax Act.

The forest of this case cannot be deemed as a land, the use of which is prohibited or restricted pursuant to the laws and regulations stipulated in Article 168-14(1)1 of the former Enforcement Decree of the Income Tax Act, and there is no assertion or evidence that the forest of this case constitutes a land for business.

Criteria for determining land not deemed land for non-business use due to unavoidable reasons under Article 168-14 of the Enforcement Decree of the former Income Tax Act

2018Gudan7666 Revocation of Disposition of Imposing capital gains tax

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○ Head of tax office

April 3, 2019

May 1, 2019

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax for the year 2014 vested in the Plaintiff on March 9, 2017 ****

1. Details of the disposition;

A. On July 16, 2004, the Plaintiff acquired and owned 449.7 square meters in the same 608 large scale 1,49 square meters, such as 608 large scale 1,49 square meters and 449.7 square meters in the same 609 square meters as ** 605-11 forest and field 7,643 square meters in the same 605-11 forest and field 7,643 square meters (hereinafter referred to as “the forest of this case”) and paid transfer income tax ****** *************** ** * * ** ].

B. On December 22, 2006, the Governor of Gangwon-do announced the designation and development plan of a district urban development zone ******* on December 22, 2006, the designation of a development plan and implementation plan for a district urban development zone *** on December 2, 201, and the instant forest was determined and announced as an urban area and a Class-III general residential area.

C. On March 2, 2017, the Defendant did not constitute “land, the use of which is restricted pursuant to the relevant laws and subordinate statutes” under Article 168-14(1)1 of the Enforcement Decree of the Income Tax Act because the instant forest does not fall under “land, the use of which is restricted pursuant to the relevant laws and subordinate statutes,” and the Plaintiff did not reside in the forest of this case. As such, the Defendant excluded the special long-term holding deduction on the ground that it constitutes land for non-business use, thereby notifying the Defendant of the correction of KRW 266,290,

D. The Plaintiff filed an objection on May 24, 2017, but was dismissed on August 28, 2017. The Plaintiff filed a tax appeal on November 15, 2017, but received a ruling of dismissal on April 11, 2018.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4, evidence 6-1, 2, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) Claim for land, the use of which is prohibited under legislation (section 1).

A) In the case of farmland or forest land in a residential area designated and publicly announced as an urban development zone, etc., the landowner cannot know the commencement date of the project, and the forest owner may not arbitrarily use the forest for the purpose of forest conservation, growing, etc., which is the original purpose of the project. Furthermore, the Plaintiff was anticipated that the forest land in this case will be changed to the original purpose of the development project as one of the co-implementers of the development project****** District* District Development Project (hereinafter “instant development project”). Furthermore, in the instant urban development project, the project completion date was set at December 2, 2009 at the time of the initial designation and public announcement, and the completion date was extended until December 2, 2014 after the enforcement date, the Plaintiff did not arbitrarily perform the additional act, such as protecting and fostering the forest in this case after the designation and public announcement.

B) Therefore, the instant woodland constitutes “land, the use of which is limited under Article 104-3(2) of the former Income Tax Act (amended by Act No. 12852, Dec. 23, 2014; hereinafter the same shall apply) and Article 168-14(1)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26067, Feb. 3, 2015; hereinafter the same shall apply) from the date the Plaintiff acquired it and publicly announced as an urban development zone after the Plaintiff’s acquisition,” and was maintained until July 14, 2014 by the Plaintiff’s transfer. Since the Plaintiff’s possession period of the instant woodland was used for more than two years from the three years immediately before the transfer date, the instant woodland may not be deemed as non-business land. Accordingly, the special deduction for long-term possession of the instant woodland should also be applied to the instant woodland.

Nevertheless, the instant disposition that did not apply the special long-term holding deduction should be revoked as it is unlawful.

2) Claim against the principle of equality (section 2)

The Defendant applied the special long-term holding deduction for the transfer income from the transfer of real estate by other joint developers, other than the Plaintiff, among the instant developers, to the transfer income from the transfer of real estate, and disposed of this case without applying the special long-term holding deduction for the transfer income from the transfer of forest land of this case. Thus, the instant disposition was unlawful in violation

B. Determination

1) Relevant statutes

The relevant Acts and subordinate statutes shall be as shown in the attached Form.

According to Article 104-3 (1) 2 of the former Income Tax Act and Article 168-6 (1) of the former Enforcement Decree of the Income Tax Act, in cases where the land category and actual status are forest and the ownership period of forest is five years or more, the period exceeding two years in the five years immediately preceding the transfer date, more than one year in the three years immediately preceding the transfer date, more than one year in the three years preceding the transfer date, and more than 20/100 of the ownership period of forest land in the case of forest for over the period corresponding to 20/100: Provided, That in applying the provisions of paragraph (1), the provisions of Article 104-3 (2) of the former Income Tax Act provide that "in cases of applying the provisions of paragraph (1), if land falls under the non-business land due to the provisions of law after acquiring it, it may not be deemed the non-business land under the conditions as prescribed by the Presidential Decree, and Article 168-14 (1) 1 of the former Enforcement Decree of the Income Tax Act, after acquiring the land delegated, shall be regarded as residing or limited

Meanwhile, according to Article 9(5) of the Urban Development Act and Article 16(1) and (3)5 of the Enforcement Decree of the Urban Development Act, where the Minister of Land, Infrastructure and Transport, a Mayor/Do Governor, or a large city mayor has designated an urban development zone, a person who intends to engage in activities prescribed by Presidential Decree, such as construction of buildings, installation of structures, alteration of the form and quality of land, gathering of soil and stones, division of land, piling of goods, piling of bamboo and trees, cutting down and planting of bamboo and trees, shall obtain permission from the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Special Self-Governing Province Governor, a Special Self-Governing Province Governor, or the head of a Si/Gun

2) As to the first proposal

According to the above facts and related Acts and subordinate statutes, it is recognized that the designation and announcement of an urban development zone was made in a single source including the forest of this case. Accordingly, in light of the circumstances described in Article 16 (1) of the Enforcement Decree of the Urban Development Act, such as construction of buildings, installation of structures, alteration of the form and quality of land, gathering of soil and stones, division of land, piling-up of goods, piling-out of goods, etc. in the forest of this case, the permission from the competent authority is obtained, but the permission from the competent authority is not restricted, but the permission from the competent authority itself is not restricted. After the acquisition of the forest of this case, the plaintiff filed an application for construction of buildings, installation of structures, alteration of the form and quality of land, gathering of soil and stones, gathering of land, piling-up of goods, piling-out and planting of bamboo trees, etc., and the related authorities, etc. can not be deemed to have restricted development activities on the forest of this case. Accordingly, the use of the forest of this case cannot be deemed to constitute the land of this case or the limited evidence under Article 16 (14).

Therefore, we cannot accept this part of the plaintiff's argument.

3) As to the second proposal

Unlike the disposition of this case, the defendant applied the special long-term holding deduction to the land transferred by the joint developers other than the plaintiff among the development entrepreneurs of this case, and even if the land transferred by the other joint developers for household affairs had been considered as the land for business, it cannot be accepted without any evidence to acknowledge that the land transferred by them was the land for business as the land for business.

4) Sub-committee

Therefore, all the plaintiff's assertion cannot be accepted, and the disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed without any grounds, and it is so decided as per Disposition.