National High Court Decision 2007Da3837 (Ob. 21, 2008)

Whether land used as a real site is excluded from non-business land;

Where the use is restricted prior to the acquisition of land, it shall not be excluded from the non-business land, and in the case of other land, it is recognized that it has been used for a certain period or more as a high-water site by considering the airline's power and the fact of payment of electricity charges

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

Article 104-3 of the Income Tax Act

Article 168-6 of the Income Tax Act

1. The part exceeding KRW 265,802,096 among the disposition of refusal to refund or correct capital gains tax of KRW 379,767,748 against the Plaintiff on February 13, 2007 by the Defendant shall be revoked.

2. The plaintiff's remaining claims against the defendant are dismissed.

3. Of the costs of lawsuit, 70% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

The Defendant’s disposition of refusal to refund or correct capital gains tax of KRW 379,767,748 against the Plaintiff on February 13, 2007 shall be revoked (the Plaintiff sought a disposition of refusal to refund or correct capital gains tax of KRW 379,767,746 on February 14, 2007 at the warden, but it is obvious that the Plaintiff is a clerical error in the amount of KRW 379,767,748 on February 13, 2007).

1. Details of the disposition;

A. On April 13, 2006, the Plaintiff sold the purchase price of 2,188,60,000 square meters to ○○○○○-dong, Ulsan-dong (hereinafter “instant land”) owned by the Plaintiff at KRW 2,335 square meters, and voluntarily paid KRW 531,931,342 of the capital gains tax when reporting the capital gains tax as the actual transaction price on June 30 of the same year.

B. On December 16, 2006, the Plaintiff filed a request for correction to refund KRW 494,934,526 of the transfer income tax paid in excess on the ground that the instant land falls under the land for business subject to the application of the standard market price. However, on February 13, 2007, the Defendant notified the Plaintiff of the refusal disposition against the Plaintiff’s request.

C. On April 20, 2007, the Plaintiff filed an objection against the above rejection disposition, and the Defendant recognized only the portion of 489 square meters in the “Ma-Ma” portion among the land in the instant case as land for business and refunded the transfer income tax of KRW 115,16,78 corresponding thereto, and dismissed the Plaintiff’s claim for refund or correction of the transfer income tax for the remaining portion.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 1 and 2, purport of the whole pleadings

2. The plaintiff's assertion

A. The land in this case is a proposed road site, where the Plaintiff acquired the land in this case, and had a freezing warehouse construction permit twice on March 2003 and November 2003, but the construction was restricted on the ground that it was a planned road site, and thus, it becomes impossible to construct the land as the building permit is restricted under Article 104-3 (2) of the Income Tax Act, Article 168-14 (1) 1 of the Enforcement Decree of the same Act, and Article 83-5 (1) 1 of the Enforcement Rule of the same Act. Thus, it is unlawful for the Defendant to determine and impose the land in this case as a non-business land.

B. Of the instant land, “A” and “B” and “A” and “B” are land used as a road and used as a passage road by neighboring major residents, and the companies using the instant land and the instant neighboring land as a passage route, and the portion 324 square meters in the portion of “C” and “B” from January 2002 to the storage of high-hand merchants’ resources operated by the Plaintiff from January 2, 2002, and the portion 592 square meters in part “B” are used as a site for high-hand fixtures of ○○○○ Council, and thus, the Defendant’s disposition of this case based on the actual transaction price is unlawful, since it is excluded from the land for non-business use pursuant to Article 104-3(1)4(c) and (2) of the Income Tax Act and Article 168-1(1)7 of the Enforcement Decree of the same Act, which is subject to the assessment based on the standard market price.

Omission

4. Determination

(a) Whether it is land, the use of which is restricted by statutes;

Article 168-14 (1) 1 of the Enforcement Decree of the Income Tax Act does not regard the land as the land for non-business use for a period of prohibition or restriction of use after acquiring the land, and Article 83-5 (1) 1 of the Enforcement Rule of the same Act permits or permits (including a building permit; hereinafter the same shall apply) related to the relevant business in accordance with the relevant Acts and subordinate statutes after acquiring the land. In the case of the land for which a person who applied for a license, etc. becomes unable to construct as the building permit is restricted in accordance with the provisions of Article 12 of the Building Act and administrative guidance, the construction permit may not be regarded as the land for non-business use for a limited period of time. Therefore, in the event the use is prohibited or restricted by the Acts and subordinate statutes after acquiring the land, the transfer value shall be regarded as the land for

On March 2, 200, in full view of the fact that the plaintiff won the land of this case on March 2, 200, there is no dispute between the parties, and the whole purport of the pleadings as a result of the fact inquiry into the Ulsan Metropolitan City Mayor, the land of this case is determined as the first road site on December 6, 1990 prior to the plaintiff's acquisition of ownership. The land of this case is not the land after the plaintiff acquired the land but the land of this case, the construction permission of which was restricted before it acquired the land. Thus, the plaintiff's assertion of this part is without merit.

B. Determination as to "A", "B", part 930 square meters in the separate sheet

Pursuant to Article 104-3 (2) of the Income Tax Act, Article 168-14 of the Enforcement Decree of the same Act stipulates that the criteria for the determination of land not deemed land for non-business due to unavoidable reasons, and Article 83-5 (1) 3 of the Enforcement Rule of the same Act stipulates that a private road under the Private Road Act or a road used by many and unspecified persons may be excluded from land for non-business use during the period used as a private road or a road for non-business use.

However, there is no evidence to acknowledge that the Plaintiff reported the opening of a private road pursuant to the Private Road Act, and only the statement of the evidence No. 3 (Certificate) is insufficient to recognize that this part of the land was used by many unspecified persons, and there is no other evidence to acknowledge this otherwise, the Plaintiff’s above assertion is without merit.

C. Article 104-3 (1) 4 of the Income Tax Act provides that the land shall be determined as non-business land for a certain period of time when the land is owned, excluding the land prescribed by Presidential Decree as the land directly related to residence or business. Article 168-6 (1) 1 of the Enforcement Decree of the same Act provides that where the ownership period of the land is five years or more as the standard for the land corresponding to non-business land, the period exceeding two years immediately before the date of the transfer, the period exceeding one year immediately before the date of the transfer, the period exceeding three years immediately before the date of the transfer, the period exceeding one year between the three years immediately before the date of the transfer, the period exceeding 20/100 of the ownership period of the land, and Article 168-1 (1) 7 of the Enforcement Decree of the same Act provides that the land used in the business shall be excluded from the maximum storage and management area of the land used for the construction and management of the goods separately.

According to the above provisions, land owned by an individual or a corporation is classified by land category, such as farmland, forest land, stock farm land, and bal site, and the period for which the land was not used for business during the period of land ownership exceeds the period prescribed by the Income Tax Act. Thus, whether the land for non-business use falls under the category of land for non-business use, not whether it is being used for business in accordance with the standard as of the transfer date, but is not used for business for a certain period

(2) Part 324 square meters in part 324 square meters in the separate sheet indication;

The plaintiff asserts that the portion of "C" and "C," among the land in this case is excluded from the non-business land since it was used as the storage of high water merchants' ○○○ resource among the land in this case. Thus, according to the results of the inquiry into the Director of the National Land Geographic Information Institute of this Court on November 2001 and December 2004, it can be recognized that there is a ground material on this part, but it is not sufficient to recognize that this part of the land was used as the storage of the remaining resources in this case. The testimony of Gap evidence Nos. 8-1 and 3, and of parts of the witnesses' 1 and 8-6 subparagraph 1 of Article 168-6 of the Enforcement Decree of the Income Tax Act is sufficient to recognize that the land in this case was used as the storage of the remaining resources.

(3) Section 592 square meters in part 592 square meters

The plaintiff asserts that this part of the land was used as the site for ○○○○. As such, considering the whole purport of the pleadings in this part of this case, it is the fact that the plaintiff opened a secondhand shop with the trade name of 00 on January 1, 2001, and the second 0 on July 21, 2001, the second 0 on July 21, 2003, the second 10 on July 21, 2000, the second 0 on July 21, 2007, and the second 0 on July 21, 200, the second 10 on July 200, the second 200 on July 21, 200, the second 20 on July 1, 200, the second 20 on July 1, 200, the second 20 on which the plaintiff paid the first 0 on the land to 00,500 on December 16, 2005.

In light of the above facts, this part of the land was used from January 2001 to April 13, 2006 as a solid site for ○○○○○○○○○○○○○○○○○○○○○○○○○○○○, in a business registration certificate and a partial lease contract, from which the Plaintiff sold the land. However, the above 630 land was used as a permanent logistics warehouse from May 31, 2003 when it was used as a regular logistics warehouse from May 31, 2003 when it was based on the fact-finding with the Director of the National Land Geographic Information Center of the court, and it was difficult to view that there was a historical evidence from November 2001 to April 13, 206, it was difficult to see that the Plaintiff’s testimony was contrary to the witness evidence 17 of this case, and it was contrary to the witness evidence 1 of this case.

Therefore, this part of the land was used from November 2001 to the time when the plaintiff sold the land of this case as a site for the solid property of ○○○ Association or ○○ Resources. Therefore, this part of the plaintiff's assertion is with merit.

(d) Conclusion

"Therefore, in full view of the facts as to the legitimate tax amount of the disposition of this case, the plaintiff was awarded a successful bid for the land in March 2, 200 with the maximum bid price of KRW 477,70,00 on March 2, 200. The plaintiff sold the land in this case to KRW 2,188,60,00,00, and the defendant recognized the "Emb" portion 489 square meters among the land in this case as land for business use on June 7, 2007 and refunded capital gains tax equivalent to KRW 115,16,78,778 won. Thus, the above 360, 197, 197, 297, 397, 196, 297, 397, 196, 297, 397, 592, 592, 197, 197, 3619, 297, 3971, 2975, 197.

Therefore, the part which exceeds KRW 265,802,096, excluding KRW 113,965,652, out of KRW 379,767,748, the Plaintiff’s claim of this case, among the disposition of this case, shall be revoked. Thus, the Plaintiff’s claim of this case shall be accepted within the above recognition scope, and the remainder shall be dismissed as it is without merit. It is so decided as per Disposition.