Cho-2018-China-998 ( October 15, 2018)

Whether the previous provisions related to the limit of capital gains tax reduction can be applied retroactively;

Since the Plaintiff transferred the instant land after the enforcement date of the amended tax law, Article 133(1) of the Restriction of Special Taxation Act is applied after the amendment with the limit of capital gains tax reduction and exemption as KRW 100 million.

The contents of the judgment are the same as attachment.

Article 133 of the Restriction of Special Taxation Act

2018Guhap1412 Revocation of revocation of a request for correction of transfer income tax, etc.

AA

a) the Director of the Tax Office

November 23, 2018

January 22, 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 rejection disposition against the plaintiff for correction of capital gains tax against O.O.O. on 2018 shall be revoked.

1. Details of the disposition;

A. On October 2016, the Plaintiff transferred x,x,x, andx, to the Republic of Korea, OO-O-O-O-dong O-dong O-dong O-dong O-O-dong hereinafter “instant land”) to x,x,x, andx, through the procedures for the acquisition of land for public use of the O-O-O highway private investment project.

B. On October 2016, the Plaintiff reported and paid capital gains tax x, xx, and xx source by deeming that it satisfies the requirements for reduction and exemption of capital gains tax under the Restriction of Special Taxation Act with respect to the instant land as 200 million won.

C. The Plaintiff filed a revised return with the limit of reduction or exemption from the Defendant as KRW 100,00,000, and received notice to pay the additional taxxx,xx, andxxxx pursuant to the revised return, and paid the additional tax amount to KRW 10,00,00,00,000 and additionally paid KRW 10,00,00,00,000,000,00

D. On October 2017, the Plaintiff filed a request for correction to the effect that the capital gains tax reduction limit on the instant land is KRW 200 million with the Defendant, and even if the reduction limit is KRW 100 million, it constitutes grounds for additional tax reduction. However, on October 2018, the Defendant rendered a disposition rejecting the Plaintiff’s request for correction (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 4 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

In accordance with the amendment of the Restriction of Special Taxation Act (O.O.O., 2015), the transfer income tax reduction limit of KRW 200 million was reduced to KRW 100 million, but Article 63 of the Addenda of the same Act (Act No. 13560, Dec. 15, 2015) was a transitional measure before January 1, 2016, and the land within the project area meeting the requirements prescribed by Presidential Decree, such as the ratio of land acquisition, etc. among the project areas for which the public announcement of project was made pursuant to Article 22 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, is transferred to the relevant public project operator before December 31, 2017. Thus, since the Enforcement Decree of the Restriction of Special Taxation Act, which was delegated under the Addenda of the same Act, was amended and enforced, the transfer income tax reduction or exemption limit of KRW 100,000,0000,000,0000,000,00.

(b) Relationship;

The entries in the attached Form of statutes shall be as follows.

C. Determination

(i) amendment of the relevant legislation;

Article 133(1)1 (b) of the former Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015; hereinafter referred to as "the Restriction of Special Taxation Act") sets the limit of capital gains tax for self-employed land to be reduced or exempted pursuant to Article 69 of the same Act, but Article 133(1)1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Act No. 1360, Dec. 15, 2015; hereinafter referred to as "the Restriction of Special Taxation Act") provides that "this Act shall enter into force on January 1, 2016; Article 2(3) of the Addenda to the Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015; hereinafter referred to as "the Addenda to the Restriction of Special Taxation Act") shall apply to the operator of the said project area after the lapse of 20 years prior to the enforcement date of the amended Act.

2) Determination

A) As to the interpretation of the Act on Taxation and Charges, it shall be interpreted in accordance with the provisions of the Act, unless there are special circumstances, regardless of the requirements for imposition or exemption, and it shall not be extensively interpreted or analogically interpreted without reasonable grounds, and in particular, it shall be in accord with the principle of fairness to strictly interpret the provision that is clearly considered as a preferential provision among the requirements for reduction and exemption (see Supreme Court Decision 2007Du9884, Oct. 26, 2007). Therefore, it is reasonable to strictly interpret the provision on reduction and exemption of capital gains tax and the provision on the supplementary provision of this case, which is exceptionally 200 million won, in accordance with the provisions of the Act.

B) Article 133(1)1 of the Restriction of Special Taxation Act, which was enforced on January 1, 2016, sets the ceiling of capital gains tax reduction or exemption as KRW 100 million, and Article 2(3) of the Addenda thereto provides that "the amended provisions on capital gains tax shall apply to cases where the transfer is made after this Act enters into force." As seen earlier, the fact that the Plaintiff transferred the instant land, which is one of its own land, toO andO on January 2016, as seen earlier. Thus, Article 133(1) of the Restriction of Special Taxation Act shall apply to the transfer of the instant land, unless the transfer of the instant land does not fall under the supplementary provisions of this case.

C) As to whether the transfer of the instant land falls under the supplementary provision of this case, Article 39 of the Addenda of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 2695, Feb. 5, 2016) provides for "requirements prescribed by Presidential Decree, such as the ratio of the project operator's land acquisition," and the supplementary provision of this case becomes effective only on February 5, 2016. Thus, the supplementary provision of this case cannot be applied until February 5, 2016. However, the supplementary provision of this case can be applied from February 5, 2016 to December 31, 2017. Since the provision of this case provides that "where the land within the project area meeting the requirements prescribed by Presidential Decree is transferred to the operator of the relevant public-private partnership project, the previous provision shall apply to the transfer of the land to the operator of the relevant public-private partnership project, and Article 39 of the Addenda of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26959, Feb. 5, 2016) provides that the Plaintiff's. 2139.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.