Seoul Administrative Court-2018-Gu Group-6387 ( October 30, 2018)

The method of calculating ‘the period exceeding the period equivalent to 40/100 of the ownership period of the land' when determining whether the land for non-business use is land

The standards for the period of land for non-business use shall be calculated based on the whole period of possession of land for non-business use from the date of acquisition to the date of transfer even in cases of land acquired before the Enforcement Decree of the Income Tax Act is newly established on December 31

Standard for period of non-business land under Article 168-6 of the Enforcement Decree of the Income Tax Act

2018Nu73982 Revocation of disposition of refusal to correct capital gains tax

AA

a) the Director of the Tax Office

May 15, 2019

June 19, 2019

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 transfer income tax reverted to the Plaintiff on June 30, 2017 by the Defendant against the Plaintiff on June 30, 2017

****the rejection disposition of correction is revoked.

1. The reasoning of the judgment of the court is that the relevant part of the judgment of the court of first instance is amended as stated in the reasoning of the judgment of the court of first instance (including the relevant Acts and subordinate statutes, but excluding '3. conclusion'). Thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Parts to be corrected;

○ The 2nd five parallel pages " June 2, 2015" are as " June 3, 2015".

○ 3rdly, 6th century add '1' on the left side.

Article 21(1)1 of 'Article 21(2)1' is 'Article 21(2)1' on the same side 7 to 8 '0'.

○ The following shall be added under the 5th below:

2) Even if the provisions of Article 104-3 of the Income Tax Act newly established on December 31, 2005 apply to this case, if the land at issue falls under a non-business land prescribed in the above provisions, it should fall under a non-business land for a period exceeding a certain period during the ownership period. Accordingly, subparagraph 1 (c) of Article 168-6 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26982, Feb. 17, 2016; hereinafter the same shall apply) provides that "the period exceeding 40/100 of the ownership period of the land. In this case, the calculation of the period shall be made by the number of days." Accordingly, if the calculation of the period of the non-business land at issue is made on a daily basis, the total ownership period of the land at issue does not constitute a non-business land under the premise that the land at issue is owned by 20/100 of the land at issue.

○ 4. 12 others (amended by Presidential Decree No. 26982, Feb. 17, 2016; hereinafter the same) shall be deleted.

The plaintiff's argument that the disposition of this case violates the principle of retroactive taxation prohibition is without merit. The plaintiff's argument that the disposition of this case violates the principle of retroactive taxation prohibition is without merit.

○ 7. The following shall be added to the two pages below:

3) In addition, the Plaintiff’s assertion regarding calculation of the period of non-business land seems to have been premised on the premise that the Plaintiff owned the land, which is forest land, as the land for non-business from the date of acquisition of the key land ( April 6, 1986) to the date of new establishment of Article 104-3 of the former Income Tax Act ( December 31, 2005). However, according to the instant provision, the pertinent land falls under forest land excluded from the special deduction for long-term holding as the land, in principle, from the land subject to the special deduction for long-term holding. There is no other evidence to acknowledge that the pertinent land falls under non-business land, and there is no illegality in the instant disposition applying the instant provision to the entire period of the land owned by the Plaintiff, and as to the forest land acquired before the enforcement of the instant provision including Article 104-3 of the former Income Tax Act, the period from the date of acquisition to the date of enforcement of the instant provision does not fall under non-business land.

1) The conclusion is made on June 3, 2015, which is the date of acquisition from April 6, 1986 to August 12, 2015, respectively; 10,651 and 10,721, respectively; 2) the date from the date following the date of new establishment ( December 31, 2005) under Article 104-3 of the Income Tax Act, which is the date of transfer, until June 3, 2015 and August 12, 2015, respectively; 3,441 and 3,511.

Thus, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.