Whether it falls under real estate trading business

Since the overall land is divided and created to develop housing sites and increase its value by selling it to many persons in succession, it is objectively recognized as the purpose of business, continuity, and repetition, and thus falls under real estate sales business.

Article 19 (1) 12 of the Income Tax Act

Article 34 (Scope of Real Estate Sales)

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 defendant revoked each disposition of KRW 47,24,920, global income tax for the year 1999, global income tax for the year 200, global income tax for the year 200, global income tax for KRW 122,698,190, global income tax for the year 201, and KRW 86,578,680 for the year 200 (the "123,198,190" out of the plaintiff's purport of the claim and the purport of the claim for modification of the reason for the claim as of June 2, 2005, appears to be erroneous in the above "122,698,190"

1. Details of the disposition;

A. On January 28, 198, the Plaintiff: (a) received a donation of 11,760 square meters in total from 00 00 - 00 - 00 - 00 - 00 - 502 - 502 - 502 - 3031 12 503-1 -2,731 - and 504 11,760 square meters in total (hereinafter “the land before the division of this case”) from 1999 to 2001; and (b) transferred the land among them (hereinafter “the land of this case”) to the largest 0,00 - and paid the transfer income tax to the Defendant.

B. However, on September 15, 2003, the Defendant imposed global income tax of KRW 92,073,00, global income tax of KRW 217,682,890, global income tax of KRW 200, global income tax of KRW 139,605,790 for the year 2001, respectively, on the ground that the instant transfer act constitutes real estate sales business.

C. On December 12, 2003, the Plaintiff filed an objection with the commissioner of regional tax office on December 12, 2003, the commissioner of regional tax office, on April 1, 2004, applied the reduction rate (20% for disabled persons) to the standard income rate to be applied when calculating the estimated income amount for each taxable year. ② In calculating the tax base for each taxable year, the Plaintiff check losses incurred at the Plaintiff’s other place of business and movable property and added a deduction for disabled persons (1 million won), and ③ The amount of the tax to be paid for the preliminary return (10,503,363, 201, 3,955, 167 won) applied at the time of the preliminary return of capital gains tax was deducted from the calculated tax amount, thereby making a decision that the tax base and tax amount should be corrected.

D. Accordingly, on April 29, 2004, the Defendant issued a disposition to reduce and correct the total income tax of 1999 to KRW 47,244,920, the total income tax of 2000, the total income tax of KRW 122,698,190, and the total income tax of KRW 86,578,680, respectively, for the year 2001 (i.e., the first disposition of global income tax on September 15, 2003).

[Ground of recognition] Gap evidence 1 to 6 (including paper numbers, hereinafter the same shall apply), Eul evidence 1 to 10, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

"A plaintiff needs to pay taxes, etc. on the inheritance reserve of inheritance against siblingss and taxes, etc. related to the expropriation compensation for the land owned by 00 :00 :310 dong 310 while he/she received a donation from his/her mother for at least ten (10) years. Accordingly, although the plaintiff intended to sell the land before the division of this case and raise funds, since the national economic crisis of the so-called IMF situation at the time, the transaction was rare, and the land was not traded on the ground that it was large scale or illegal type, the plaintiff inevitably sold the land by installments. As such, the plaintiff did not have the business purpose, and the land was not continuously and repeatedly sold or sold, and the transfer act of this case cannot be deemed as the business activity of real estate sales. Nevertheless, considering it as business income, it is unlawful for the defendant to impose a comprehensive income tax, other than transfer income tax." or related Acts and subordinate statutes.

Attachment 'Related Acts and subordinate statutes' shall be as shown.

(c) Fact of recognition;

(1) The Plaintiff, due to visual disability, was unable to engage in the social activities of 00 people, and the Plaintiff was responsible for the management of the property including the land before the division. On February 3, 199, 199, 200 U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S.

D. The reasons why the Plaintiff transferred the land before the instant partition to each of the instant land shall be as indicated in the table on the division, merger, and transfer.

Consolidatedly, the sales contract that the Plaintiff entered into with the buyer of the instant land is as follows (hereinafter referred to as “the sales contract of this case”).

No.

Land subject to the land

(00.0 00 Do-dong)

Area

Sales Contract

Date of conclusion

Buyer

Sales proceeds

Jinay

1

Part of 502, 503-1, 504

approximately 900 square meters

March 8, 199

Maximum00, No. 00

Maximum 00

450,000,000

1 Contract of Sale

2

504, 504-18

approximately 400 square meters

1, 200.20

Maximum00, Kim00

480,000,000 won

2 Contract of Sale

3

504-17

526С

8, 200

west 00

302,00,000 won

Type 3 Sales Contracts

4

502-2, 502-9

59.3 square meters

.12, 200

Note 00 and 4 others

866,915,00 won

4 Sales Contracts

5

502-7, 502-8

1,320 square meters

June 16, 2001

Labor Standards00

1,078,110,000 won

5 Sales Contracts

* However, the fifth sale contract was concluded in the name of the administrator in 00.

x, however, the sales contract of this case contains the following contents by the special agreement:

㈎ 제1매매계약

(1) Cooperation in the construction of roads shall be made.

(2) Matters related to the opening of roads, electricity, communications, sewerage, and infrastructure shall be calculated according to their respective shares.

㈏ 제2매매계약

(1) A road shall be constructed after cadastral adjustment is completed.

(2) The actual number of roads, excluding road areas, shall be 400 square meters, and any balance remaining after cadastral confirmation shall be settled.

(3) All facilities, such as access roads, development of underground water, sewerage, electricity, telecommunications, urban gas, etc. shall be borne, in consultation with the landowner.

㈐ 제3매매계약

(1) A seller shall enter into a contract on condition that a purchaser may obtain permission at the time of building permission.

(2) The road packages and sewerage systems shall be completed under the responsibility of a seller (before the intermediate payment).

(3) Of part payments, KRW 90 million shall be paid by a purchaser after completion of civil engineering works (road, sewerage, or ground reclamation) related to the land, after the seller notifies the buyer.

㈑ 제4매매계약

(1) Each person's co-ownership share shall be donated among the total amount of each contract for sale in lots. (2) The installation and installation costs of electricity, water, gas, and other installation except roads, sewerage shall be borne by allocating at the ratio of each party's own share of each purchaser who sold in lots (Provided, That it shall be treated by keeping the co-ownership share in the name of the former owner up to the completion of construction).

(3) In order to obtain a building permit under the Building Act, a purchaser shall recognize that a seller submits a document of donation to the authorities additionally before and after a sales contract is made (Provided, That the construction of a road shall be made a sewerage system and cement package by a seller).

(4) Where a purchaser requests documents necessary for cadastral division and registration of subdivision, he/she shall deliver his/her seal imprint and signature and seal thereon without objection.

(5) The number of plane to be additionally incorporated into the road to obtain a building permit under the Building Act after the conclusion of a sales contract shall be borne by the purchaser.

(6) A site boundary in a complex shall be divided into landscaping. The outer boundary shall be installed with the same structure in order to jointly operate it with a crime prevention system. The outer boundary shall not exceed three floors above the ground level.

㈒ 제5매매계약

(1) Infrastructures within a complex shall be classified into infrastructure specified in the details of a building permit for land subject to sale and shall be further determined by a special agreement between the seller and the purchaser; - In other words, the joint development of groundwater, installation of sewage pipes, electricity and telephone access, access roads and packaging of roads in the complex shall be conducted by the seller at his/her responsibility.

(2) Except in special circumstances, a purchaser shall have a specialized construction-supervising firm designated by the seller manage and supervise the design, construction, etc. of a building in order to efficiently develop and maximize the development effect of land.

(v) on April 10, 200, the Plaintiff and the assignee of the instant land, the maximum of 00 (which is the wife of 00), the maximum of 00, the maximum of 00, the Kim00, and the inside0, delegated all matters concerning land development, including the civil engineering works and infrastructure, of the instant land, to 00, and each owner shall jointly engage in the construction and transfer of the instant land, and, in the event of transfer of the said land or secession from the said land due to unavoidable reasons, agreed to deal with it by mutual agreement.

⑹ 원고는 이 사건 토지 중 00시 00구 00동 504 토지를 양도하기 직전 자신 명의로 00시 000청장에게 위 토지의 형질변경 및 건축허가신청을 하여 2000. 3. 8. 건축허가를 받았다.

⑺ 잡종지이던 이 사건 분할 전 토지는 000골프장 인접에 위치하나 교통이 불편하여 입지조건이 좋지 않았는데, 이와 같은 일련의 양도행위 결과, 그 일대가 주택단지 부지로 조성되었다.

[Ground of recognition] Gap 1, 2, 4, 5, 6, 7, 11, 12, 16, 17, 18, 19, Eul 11 through 16, and the purport of the whole pleadings and arguments

D. Determination

(1) According to ordinary social norms, whether the income from the transfer of real estate is business income or transfer income under the Income Tax Act shall be determined by considering the transferor’s acquisition and holding status of real estate, whether the transfer is made, the size, frequency, mode, and other party of the transfer, as well as the continuity and repetition of business activities to be seen as profit. In such determination, not only the transfer of real estate concerned but also the transfer of real estate in general owned by the transferor should be taken into account all the circumstances before and after the transfer of the real estate in general owned by the transferor (see, e.g., Supreme Court Decisions 9Du5412, Apr. 24, 2001; 95Nu10969, Feb. 3, 1996).

As seen in the Luxembourg case, as seen in the above facts, ① the Plaintiff divided the land before the division into 15 lots on several occasions, and transferred the land of this case to 12 lots. The sales contract of this case was made under the condition that only the size of the lots was determined before the division of the land of this case. ② According to the special agreement of this case, most of the construction permission is premised on the premise that the construction works are carried out, such as access roads, development of underground water, sewerage, electricity, telecommunications, urban gas, etc., ③ According to the agreement of April 10, 200, the Plaintiff and the land purchaser were under the premise that the Plaintiff continued to sell the land of this case to 00, an administrator of the Plaintiff, by delegation of all the matters concerning the development of the land of this case such as public works on housing site development and infrastructure construction, and the transfer of the land of this case to 12 lots before the division of the land of this case, and the Plaintiff did not objectively acquire and sell the land of this case for the purpose of the sale of the land of this case.

Therefore, the instant disposition that imposed the general income tax on the business income is legitimate, deeming the instant transfer act as falling under the business activities of real estate sales business.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

public official law, order of law,

Income Tax Act

Article 19 (Business Income)

(1) Business income shall be the following incomes generated during the relevant year:

12. Incomes accruing from the real estate sales business as prescribed by the Presidential Decree;

Enforcement Decree of the former Income Tax Act (amended by Presidential Decree No. 17302 of Dec. 29, 2000)

The term “real estate sales business determined by the Presidential Decree” in Article 19 (1) 12 of the Act means buildings, private construction business, and real estate sale and supply business on the Korean Standard Industrial Classification: Provided, That this shall not include the housing construction and sales business referred to in Article 32.

Enforcement Decree of the Income Tax

For the purpose of Article 19 (1) 12 of the Act, the term “real estate sales business as determined by the Presidential Decree” means buildings, construction business (limited to the case where a building is self-permanently constructed and sold) and real estate supply business on the Korean Standard Industrial Classification: Provided, That this shall not include the housing construction and sales business as prescribed in Article 32.

Added (No. 17032, December 29, 2000)

Article 1 (Enforcement Date) This Decree shall enter into force on and after January 1, 2001.

Article 2 (General Application) This Decree shall apply to the portion of income accrued for the first time after this Decree enters into force.

Common Provisions of the Income Tax Act

19-7 [Classification of Business Types of Real Estate Sale Business, etc.]

(1) The scope of real estate trading business under Article 34 of the Decree shall be as follows:

1. Where real estate is traded or real estate has been acquired at least once within a taxable period of value-added tax Act for the purpose of business by indicating the sale or purchase of real estate (including the sale by new construction of a building) or brokerage thereof, or real estate is sold at least twice;

3. Where land is developed and sold in installments as a residential site, industrial complex, commercial building, cemetery, etc.;

(4) The term "development of land in the classification of real estate trading business" means all acts that cause a rational and efficient enhancement of the utility value of the relevant land by suspending, dividing, creating, altering, etc. a specific land.