Cho High Court Decision 201Do5014 ( October 14, 2012)

capital expenditures paid to increase the value of the land.

In order to establish a factory and use an access road on the land, the use price was partially refunded as the application for approval of factory construction was rejected, and the remainder was not returned. The amount not returned is a capital expenditure, which is paid in order to increase the value of the land.

2012 old-gu 11761 Disposition of revocation of capital gains tax rectification notice

XX

Head of Geumcheon Tax Office

October 24, 2012

November 21, 2012

1. The Defendant’s imposition disposition of capital gains tax of KRW 000 for the year 2010 against the Plaintiff on August 1, 2011, which exceeds KRW 000,000, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-fifth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s imposition of KRW 000 on August 1, 201 against the Plaintiff on August 1, 201 shall be revoked.

1. Details of the disposition;

A. On January 3, 2007, the Plaintiff acquired and owned 13,223 square meters of forests and fields XX 00 m23 m2 (hereinafter “instant land”) in the Nam-nam-si, Sungsung-si, and transferred the instant land on October 29, 201 (public sale by default of acquisition tax).

B. On January 31, 201, the Plaintiff reported transfer income tax to the Defendant to the effect that the transfer value of the instant land is calculated as KRW 000,000, and the acquisition value is calculated as KRW 000, such as acquisition tax, and KRW 000, the cost of using the access site, and KRW 000,000, such as cost of using the access site, is deducted as necessary expenses

C. However, on August 1, 2011, the Defendant denied 000 won for the use of the access road site among necessary expenses and 000 won for the lawsuit, and decided and notified 000 won for the transfer income tax of 2010 (hereinafter “instant disposition”).

[Grounds for Recognition] Unsatisfy, Gap evidence 1, 2 (including each number), Eul evidence 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff acquired the instant land in order to establish a manufacture factory of pulp and paper industry machinery, and paid KRW 000 to the owner of the access road site of this case in order to use x 00-1 forest 14,434 square meters (hereinafter “the access road site of this case”) adjacent to the instant land as a factory entry usage. However, as the Plaintiff’s application for the establishment construction of the access road of this case was returned, it was impossible to construct the factory on the instant land. Accordingly, the Plaintiff filed a return lawsuit against the owner of the access road of this case to refund KRW 00,000, and failed to refund the remainder KRW 00,000. Accordingly, the instant disposition of this case, which was otherwise reported, is unlawful.

(b) Fact of recognition;

(1) On May 20, 2007, the Plaintiff purchased the instant land to build a factory on the instant land, and around May 20, 2007, paid KRW 000 to the clans, the owner of the access road site of this case, for use.

(2) However, when the Plaintiff’s application for approval of factory was rejected, and it was impossible to establish a factory on the instant land, the Plaintiff filed a lawsuit of return of KRW 000,000 paid for the use of the access road site to the said clan (U.S. District Court 2010Da21279) against the said clan, and the conciliation was concluded on September 20, 201 between the Plaintiff and the said clan to receive a refund of KRW 00,000,000 from the said clan.

[Reasons for Recognition] The above evidence, Gap evidence Nos. 3 through 6 (including each number), Eul evidence Nos. 2 and 3, and the purport of the whole pleadings

C. Determination

The capital expenditure for the land refers to the cost required to increase the real value of the land, and the ordinary access roads contribute to the increase of the utility value of the land to be used by the access roads, barring any special circumstance, the construction of the access roads contributes to the increase of the utility value of the land to be utilized by the access roads. Therefore, the value of the land to be used as the roads and the cost of building roads falls under the capital expenditure for the land concerned (see Supreme Court Decision 2006Du5502, Apr. 11, 2008) and the cost of using as the access roads falls under the capital expenditure for the increase of the utility value of the land concerned

In this case, according to the above facts, the plaintiff established a factory on the land of this case and paid 000 won to the owner of the access road of this case to use it as the access road, but the application for the approval of factory construction was rejected, so the above usage price was returned to 000 won and the remaining 00 won was not returned. It is reasonable to view that 000 won which was not returned was paid to increase the value of the land of this case as the expenses paid in order to increase the value of the land of this case, and therefore, the plaintiff's assertion is with merit.

(d) Justifiable tax amount.

The legitimate amount of tax, such as the attached tax calculation sheet, is KRW 000.

E. Sub-committee

Therefore, the part exceeding KRW 000 among the disposition of this case is unlawful, and the remainder is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.