Daejeon High Court-2014-Nu-12824 ( October 25, 2015)

More than five times the settled area of land annexed to a house shall not be included in capital gains tax reduction or exemption.

Income generated by a corporation that runs the housing construction and sales business relocated to the local area by transferring land (the area exceeding five times the area on which the building is built) appurtenant to the house shall not be included in the subject of the temporary special tax reduction or exemption

Article 63-2 of the Restriction of Special Taxation Act (Special Tax Abatement or Exemption)

Supreme Court Decision 2015Du47843 ( November 27, 2015)

○ Stock Company

○ Head of tax office

oly, 2015.25

The Plaintiff’s appeal regarding the disposition imposing additional tax shall be dismissed in the judgment below.

The remaining appeals by the plaintiff and the defendant are dismissed.

Costs of appeal shall be borne by each party.

In the decision of the court below, "68,395,311 won of additional tax" in paragraph (1) of this Article shall be corrected as "612,113,170 won of additional tax".

November 27, 2015

1. We examine the Plaintiff’s ground of appeal regarding the disposition imposing additional tax in the instant disposition prior to examining the Plaintiff’s ground of appeal.

Since an appeal is seeking revocation or change of a judgment disadvantageous to himself/herself in favor of himself/herself, the appeal of appeal against the judgment of the court below in favor of him/her cannot be permitted as there is no benefit of filing an appeal, and in principle, whether the appeal is disadvantageous to the appellant should be determined on the basis of the text of the judgment. If an appellant’s assertion was accepted and won in favor of him/her, there is no benefit of appeal even if there is objection to the reasoning of the judgment (see Supreme Court Decision 2009Du3555, Jun. 30, 201). According to the records, even though the plaintiff won all of the part of the disposition of this case seeking revocation of the penalty tax in favor of himself/herself, it is obvious that the

Therefore, the Plaintiff’s appeal on the disposition imposing additional tax in the lower judgment is unlawful as there is no benefit of appeal.

2. We examine the Plaintiff’s grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) on the part of the disposition imposing principal tax in the instant case.

(1) Article 63-2 (2) 2 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Act No. 6538, Dec. 29, 201; hereinafter referred to as the “former Enforcement Decree of the Restriction of Special Taxation Act”) provides that the amount of income equivalent to the 6th anniversary of gains on transfer of land and buildings for a certain period of 0 years (hereinafter referred to as “tax base subject to reduction”) shall be reduced or exempted from the corporate tax for 20-year period from the date of the revised Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 1065, Dec. 29, 2001; 200-6; 3.0-6. 4. 7. 6. 7. 7. 20-2 of the former Enforcement Decree of the Restriction of Special Taxation Act, which is the land subject to reduction or exemption under Article 63-1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Act No. 6538, Dec. 29, 2001).

Furthermore, the lower court determined that Article 20-2(1) of the Enforcement Decree of the Corporate Tax Act (amended by Act No. 6658 of Dec. 31, 2001) was an authoritative interpretation that the Ministry of Finance and Economy construed to limit the scope of “five times the size of building on which special surtax is exempted” under Article 100(1)5 of the former Corporate Tax Act (amended by Act No. 6658 of Dec. 31, 2001) to “five times the size of building on which special surtax is built” under Article 92-2(4)4(a) of the Enforcement Decree of the Corporate Tax Act or “the total floor area of the land on which special surtax is exempt” as of February 28, 201 at the time of the enforcement of the Restriction of Special Taxation Act, and that Article 92-2(4)4(a) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 2014, Jul. 11, 2006>

3. The defendant's grounds of appeal are examined.

According to the records, on June 1, 2010, the defendant notified the plaintiff of the disposition of this case as ○○○ upon the disposition of this case, but reduced the penalty tax to ○○○○○ upon the decision of the Tax Tribunal on January 28, 2014, and the plaintiff also sought revocation of the disposition of imposing additional tax that remains after the reduction as above. Therefore, the part revoking the "Additional Tax ○○○○" in Paragraph 1 of the judgment of the court below is merely an obvious clerical error in the "Additional Tax ○○". Thus, the defendant's ground of appeal disputing the judgment of the court below on the premise that the court below revoked the additional tax ○○○○○○ is not accepted without the need for further determination.

Therefore, among the judgment below, the plaintiff's appeal concerning the disposition imposing additional tax is dismissed, the remaining appeal by the plaintiff and the defendant's appeal are dismissed, and the costs of appeal are borne by each party. However, in the disposition of the court below, "the additional tax 00 won" in Paragraph 1 of the judgment below is revised ex officio as "the additional tax 00 won". It is so decided as per Disposition