Whether the prohibition or restriction of the use due to the change in the urban planning falls under the inevitable reason that can be seen as the land for business

It is difficult to view that there was a change in the urban planning, and it cannot be deemed that the follow-up administrative measures based thereon were not taken, thereby not constituting the land for business.

Article 168-14 of the Enforcement Decree of the Income Tax Act

2018Gudan142 Revocation of Disposition of Imposing capital gains tax

The term " reclaimed land" is a salt farm and bank by the Southern Sea Construction Co., Ltd. around December 29, 1962.

The reclaimed land of this case was created, and it was divided into 100 parcels thereafter.

2) The reclaimed land of this case is a passage through the reclaimed land of this case by the land of 210-2, Dong-dong, Do, Do.

Land was created as a bank that was used as an access road to the interest general road, and the land in this case was currently at present.

Having passed through the above bank (road) in the past of Han-ro, and led to the land 210-2, Dong-dong, Do, Seoul Special Metropolitan City;

The land 210-2, Dong-dong, Do, Do, is connected to the general roads and used as an access road to the reclaimed land of this case.

3) The comprehensive construction headquarters of Incheon Metropolitan City adjacent to the 210-2 land of Dong Do 1, Do 100, and the 6-line knive line

As above, at the time of opening the instant reclaimed land (ended on March 31, 200), the progress leading to the instant reclaimed land as above.

A part of the land of 210-2, Do, Do, Dong-dong, Dong-dong, Dong-dong, Dong-dong, Dong-dong, Do-dong, is destroyed naturally.

In the middle of land, a bank road located in the land of 210-2, Dong-dong, Do, Do, in accordance with the installation of a bank block.

It was impossible to use it as an access road leading to the reclaimed land, and around that time, the Do-dong of Do-dong.

210-2 Part of the land owned by Incheon Metropolitan City, Do 210-4, Dong-dong, Incheon Metropolitan City, adjacent to the land, shall be existing.

It has been used as an access road to the reclaimed land of this case by connection with the bank road.

4) The head of Seo-gu Incheon Metropolitan City shall have the part corresponding to the access road among the land of 210-4, Dong-dong, Do, Incheon Metropolitan City.

In the middle of about 60 square meters of the reclaimed land of this case, some of the lessees of the reclaimed land of this case defects in concrete building for passage.

on March 13, 2003, for reasons of illegal alteration of form and quality against public land.

The administrative vicarious execution to be removed was conducted by manufacturers of steel-frames around March 22, 2007.

Illegal alteration of form and quality by failing to dispose of illegal steel frameds, etc. on the ground of reclaimed land;

on the ground that the land was used as an access road in the land of 210-4, Dong, Do, Dong, Dong, Do, and

tin and sidewalk blocks shall be installed by conducting administrative vicarious execution by means of stuffing both sides;

The access road was completely closed due to installation of a pents, etc.

The reform was carried out.

5) The formerCC and 55 others called "request for the resumption of an existing road closed on March 10, 201"

On April 7, 2011, Incheon Metropolitan City submitted a letter of intent, and opened a compensation or substitute road on April 7, 201.

On July 25, 2011, the formerCC et al. and 54 other civil petitions urged the normal opening of alternative roads.

The Incheon Metropolitan City filed a lawsuit, and on August 201, 201, part of the land of 210-4, Dong-dong, Do, Do, Dong-dong, Do, Dong-dong, Do

(i) modify a site report into a site incorporated into the established construction, but omit it and complete the work;

I would have opened a part of the land of Do, Do, Dong, Do, which is managed as a general property, as a substitute road.

The report on the result of the civil petition investigation was made to the effect that " there is a need."

6) The head of Seo-gu Incheon Metropolitan City shall construct the instant reclaimed land and the instant reclaimed land connected to ○○ Road.

With respect to the designation of roads under law, on March 31, 2014, the first announcement of the designation of roads (on March 31, 2014, part of land 210-4, Dong, Do,

on December 30, 2014, the second announcement of the designation of roads, and the third announcement of the designation of roads on December 29, 2015, respectively.

C. The land of 210-4, Dong-dong, Do, and Dong-dong, included in the foregoing road, is divided into lots, and each of the following on May 3, 2018.

Land category was changed to "road".

[Ground of Recognition] Unsatisfy, Gap's statements and images, and changes in Gap's evidence 1 to 3, 13, 14, 18, 20

The purpose of the whole theory

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

The land of this case is prohibited and restricted after the plaintiff acquired it for the following reasons.

(main assertion) or due to changes, etc. in urban planning after the acquisition of the plaintiff;

or restrictions are extended from August 201 to December 29, 2015 (preliminary assertion).

As such, Article 168-14 (1) 1 and 4 of the Enforcement Decree of the Income Tax Act, Article 83 of the Enforcement Rule of the Income Tax Act

-5 Even though it falls under the land for business due to the inevitable reasons of Articles 12 and 12, it shall be non-business

Each disposition of this case that excluded the special long-term holding deduction from land is unlawful.

1) At the time of the establishment of the ○○○ road, the State-owned land, 210-2, Dong-dong, and Do-dong, i.e., public land

Although a 210-4-land has already been built a 4-meter wide road, which is an urban planning facility, this is even if the 4-meter wide is already built.

The Incheon Metropolitan City shall make a cadastral division and change of land category, and change of use (general) by omitting in the land record of B.

Follow-up administrative measures, such as the change from "bank", " field" to "road," which is administrative property, and the preparation of a cadastral record;

and the Seo-gu Incheon Metropolitan City Office shall not operate the Dong of Do in Do on the basis of such erroneous administrative act.

210-2 The Association of the reclaimed land of this case by carrying out administrative execution to close land and 210-4, Dong-dong, Do, Do.

It was created as a part of the area.

2) The above administrative acts of Incheon Metropolitan City and Seo-gu Incheon Metropolitan City are clearly roads.

of the reclaimed land of this case by omitting and making a decision as to omission and omission of the use of the land of this case

as such, the defect is so serious and clear that it is null and void. It is an administrative disposition for the invalidity of per annum for domestic affairs.

Even if it cannot be seen, Incheon light dated April 7, 201, prior to the acquisition by the Plaintiff of the instant land.

It also recognizes that the notification of the report on the result of the civil petition investigation is illegal of the above administrative act and disposition.

of this case, as a result of the fact that it was "to establish a new or alternative road," the person who is thereby entitled to do so.

Administrative disposition prohibiting building permission of the Incheon Metropolitan City and Seo-gu Incheon Metropolitan City Office shall be deemed revoked.

use and construction of the land of this case, notwithstanding the current status of the franchise. Therefore, the use and construction of the land of this case is legal.

shall not be deemed to be a prohibited or restricted state.

3) After the notification of April 7, 201 to the formerCC et al. and 55 others, the Plaintiffs were made.

The purpose of business is to operate a factory with trust in obtaining a building permit on the land of the case.

On June 29, 2011, the instant land was acquired in a voluntary auction procedure. The existing private road can be used.

section 210-2 and section 210-4 of Dong, Do, Do, or Do, shall be required to correct illegal administrative acts, which are omitted in the land form.

use of a road, which is an existing urban planning facility, if it has performed an administrative act, such as land category change, change of use, etc.

It was long possible to conduct construction activities.

4) However, the Incheon Metropolitan City shall develop a single unit after the lapse of at least 10 years, and the volume of traffic;

The reason that the state, etc. is unable to cope with the existing private roads or urban planning facilities;

On August 2011, 201, in a report on the result of the investigation of civil petitions, the land of 210-2 in Do, Do, Do, Do, 2104

Ro-A new decision was made to create a road under the Building Act. Accordingly, the Incheon Metropolitan City-do Building Act

Land by the time of public announcement of designation of a road ( December 29, 2015) due to the commencement of an administrative procedure creating a road.

The use of the land was prohibited and restricted by the Plaintiffs. As a result, the Plaintiffs completed a road designation announcement on December 2, 2015.

Until the end of about four years, factory construction different from the existing plan due to financial difficulties after the lapse of a period of about four years;

It is impossible to transfer the instant land because it became impossible to do so.

B. Relevant statutes

It is as shown in the attached Form.

C. Judgment on the main argument

1) Article 104-3 of the former Income Tax Act (Amended by Act No. 14389, Dec. 20, 2016)

According to Paragraph 2 of Article 168-14 (1) 1 of the Enforcement Decree of the Income Tax Act and Article 168-14 (1)

land for non-business use due to unavoidable reasons for which the use is prohibited or restricted.

In the case of falling under the land for non-business, the land can not be considered as land for non-business.

land is unique beyond the ordinary limit due to the use of land;

land, the use of which is separately restricted, is directly restricted by the provisions of the statute itself; and

Building permission as part of administrative action as well as land prohibited or restricted in use by administrative agencies.

According to uniform control, land including land actually prohibited or restricted from use.

It is reasonable to see that it goes beyond the ordinary limit according to the use of the land.

In particular, whether the use is restricted by the original purpose of the land.

on the basis of the principle of section 1, the purpose and actual use of the land, and the change of its original purpose;

It should also be determined individually by taking into account the possibility of light, etc. (Supreme Court Decision 201No. 24 October 24, 2013).

High Court Decision 2010Du18543, Supreme Court Decision 2011Du14425 Decided October 31, 2013, Supreme Court Decision 2011Du1425 Decided October 31, 2016

14. On the other hand, acquiring a parcel of land and prohibiting the use thereof in accordance with the laws and regulations after acquiring it; and

for a limited period of time only with respect to the "limited land", which is not considered idle land for a limited period of time.

It is apparent in the text of the law under Article 168-14(1)1 of the Enforcement Decree of the Income Tax Act, and has already been used by the law.

Acquisition of land and restricted land is inevitable due to prohibition and restriction of use.

(1) If the land price of the land is cancelled, it shall be likely to rise if the land price is cancelled, and such use shall be expected.

Since it is acquired by permitting prohibition and restriction, the provisions of the Act and subordinate statutes have already been applied before the acquisition of land.

Land, the use of which is prohibited and restricted, is not excluded from non-business land (Supreme Court Decision 4 April 1999).

23. The purport of the Decision 97Nu11423, supra.

2) Considering the following circumstances with respect to the instant case, the acquisition by the Plaintiffs

Before this time, it should be deemed that the land in this case was a blind land in which the building permit cannot be obtained.

Therefore, it is difficult to view that the instant land is excluded from non-business land.

A) First of all, the part of the reclaimed land of this case 210-2, Dong, Do, Do, Do, and Dong.

210-4 Examination as to whether a road, which is an urban planning facility, has been installed on the land, No. 5

According to the statements and images of evidence 8, 17, 23, and 24, the head of the Incheon Metropolitan City General Construction Headquarters on March 3, 2008.

5.In the case of opening ○○○-ro, the reasons why access roads to 210-2, Dong-dong, Do, △○-dong are installed in the inquiry.

In order to connect existing bank roads, a statement that it is confirmed as a asphalt package of approximately 4m;

In fact, the civil petition inspection report around August 201, 201 of Incheon Metropolitan City, and the land of 210-4, Dong-dong, Do, Dong-dong, Incheon Metropolitan City.

Part of ○○○○ road and its land protocol shall be modified to the site incorporated into the installation work.

B. Omission of this and completed the construction, resulting in a standard at the time of the construction of the ○○○ Road.

- Part of the land, such as 210-4 Do, Do, Dong, Do, which is managed as general property, shall be incorporated into a substitute road.

It is clear that the administrative property is to be registered as an item, and that it is to be registered as an item.

In the case of 210-2, the total area shall not be less than 229m2 in the case of "matters to be verified by omitting entry in a site report;

High-level incorporated area shall be 81.7 square meters in current roads, 104.6 square meters in Hobble construction, 42.7 square meters in total, and 210-4 square meters in total, and 210-4

In such cases, the total area shall be 436 square meters, and the incorporated area shall be 82.5 square meters in current roads, 11.2 square meters in Hobble, and extra-in area.

The fact that the area is indicated as 342.3 square meters, and the Incheon City City Planning Committee on ○○○○ Construction Project

The public announcement of the authorization of the implementation plan of snow (road: 2-59) and the public announcement of the authorization of the implementation plan, the authorization of the implementation plan, and the

It is recognized that the land of 210-2, 210-4 is written in some Do-dong, Do-dong.

However, the entry and video of Eul Nos. 3, 4, Eul No. 1, and the species of Incheon Metropolitan City of this Court

In full view of the whole purport of arguments as a result of fact inquiry to the chief of the Joint Construction Agency:

In the same circumstance, i.e., the public notice of authorization for the implementation plan of the Incheon Urban Planning Facility (Road No. 2-59)

between the points indicated at the point (point) and the end point, and between the points indicated in the above access road, 210-2, Dong, Do;

210-4 There is no evidence to acknowledge that the land is located, and the land use plan confirmations (A subparagraph 4).

o) According to the above part of the access road, it appears that there is no road which is an urban planning facility;

(2) In response to inquiries (Evidence A5) made on March 5, 2008 by the head of the General Construction Headquarters of Incheon Metropolitan City on March 5, 208, an urban planning.

No. 3. The report on the result of civil petition investigation (A. 8) around August 201, 201, Incheon Metropolitan City.

Even in accordance with the Act on Special Cases concerning the Acquisition of Land for Public Use and Compensation for Loss (Abolition February 4, 2002)

Article 23-2 (Indirect Compensation for Farmland, etc.) of the Enforcement Rule (Act No. 6656) and Article 219 of the Civil Act

In accordance with the provisions of paragraph (1), the land traffic right is "the opening of a compensation or substitute road", and the operation of the Do-dong.

With respect to land 210-2, 210-4, it is possible to substitute roads with a passage for entry and exit through administrative procedures.

to confirm that the road, which is an urban planning facility, is the purpose of resolving the civil petition;

Access roads which are not visible, and are closed due to administrative vicarious execution, etc. by Incheon Metropolitan City.

Between September 201, 201 to February 2012, 210-2, Dong-dong, Do, Do-dong, Do-dong, 10-4, Dong-dong, Do-dong, 10-4

It has been opened on February 2012 to allow passage of vehicles and pedestrians on February 2, 2012 (round that time).

On March 7, 2012, the land category of 210-20 square meters in Do-dong, Do-dong, Do-dong, Do-dong, 210-20 square meters, which is divided into the land of Do-dong

The head of Seo-gu Incheon Metropolitan City was changed from the "bank" to the "road" (No. 7) and 5 in the process.

On March 16, 2012, 201, 210-4 land in Do-dong, Do-dong, Incheon Metropolitan City on March 23, 2001 and July 122, 2003

For the reason that the total area of 436 square meters is excluded from the area incorporated into a road at the time of the alteration of the catch;

The response was made by Incheon Metropolitan City that the land category change of 210-21, 210-22, Dong-dong, Do, Seoul Special Metropolitan City, and Incheon Metropolitan City.

On June 26, 2012, a person who is the representative of a civil petition reporter shall be notified of such notification to the ○○○○○○ Construction Corporation.

It is notified that it has been aware that it maintains the function of a road in customary terms such as relocation (the Incheon Metropolitan City Incheon Metropolitan City)

On March 19, 2012, a report on the completion of civil petition for the establishment of the instant reclaimed land as a substitute for the landfill to the formerCC and 54 persons.

Considering the above recognition and the evidence submitted by the plaintiffs alone, the fact of the recognition and the evidence submitted by the plaintiffs 210-2.

It is difficult to recognize that a road, which is an urban planning facility, exists on the land and 210-4.

B) As long as it is difficult to view that the urban planning facility had a road, it is necessary to further examine.

Without regard to the omission of entry in the land protocol as alleged by the Plaintiffs, cadastral division, land category change, change of use

No follow-up administrative measures may be deemed to have not been taken.

C) Evidence A 21-1, 2, Eul 1-1, 2-2, and Eul 2-2

on January 30, 2008, Do-dong, Do-dong, Do-dong, Do-dong, 12-100 among the reclaimed land of this case owned by Do-do and Do-dong, Do-dong

210-4 adjoining land) An application for a building permit to newly build neighborhood living facilities on the ground;

However, the requirements that the Seo-gu Incheon Metropolitan City Office should adjoin to the road on February 18, 2008 at least two meters.

The fact that the application for the above building permit was rejected on the ground that it did not meet the above building permit, and GyeongD's rejection disposition

The Incheon District Court (2008Guhap3481) filed an administrative litigation seeking revocation, but on July 23, 2009

The above judgment dismissed the above claim, and the above judgment (Seoul High Court 2009Nu25448) and

The final appeal (Supreme Court Decision 2010Du14374) was dismissed and rendered on February 9, 2010, and the above decisions are with merit.

In addition, the part of the land of 210-4, Dong-dong, Do, Dong-dong, as seen in the background of the disposition and paragraphs (2) to (4) of the same paragraph.

Administrative vicarious execution by the Seo-gu Incheon Metropolitan City Office that has been used as access roads connected to the existing bank roads.

Access roads have been completely closed, and the Seo-gu Incheon Metropolitan City Office or Incheon Metropolitan City is public land.

Seoul Special Metropolitan City, Do 210-4 Land sale request or access to buildings on land owned by Do Do Do 210-4

For this purpose, there is a duty to continue to allow the passage of land 210-4, Dong-dong, Do, Do.

It is difficult to see that the entry into and exit from the building under Article 33 (1) 11 of the former Building Act is hindered.

3.3.6, however, a statement that it does not constitute a case

It is difficult to deem that administrative vicarious execution, etc. by the Seo-gu Seoul Metropolitan Government Office is invalid due to serious and clear defects.

D) As alleged by the Plaintiffs, ① Incheon Metropolitan City’s report on the results of the civil petition investigation conducted on April 7, 2011 by the Plaintiffs

Boli has revoked an administrative disposition prohibiting building permission of Incheon Metropolitan City and Seo-gu Incheon Metropolitan City Office.

(b) A new road under the Building Act shall be created by Incheon Metropolitan City as a result of the investigation of a civil petition on August 201.

that is not determined by Incheon Metropolitan City. The Incheon Metropolitan City shall secure a substitute and resolve a civil petition.

on February 2, 2012, the passage of vehicles and pedestrians shall be open to the public and customary drawings such as relocation.

It was known to the civil petition that he has maintained the function of the road, and that it was subdivided from the land of 210-4, Dong-dong, Do.

tin-dong 210-21, 210-22 The response of Seo-gu Incheon Metropolitan City Office that it is impracticable to change the land category;

The facts delivered to the cause are as shown in the above A.

E) The instant land category was a salt farm and its actual status was miscellaneous, and the Plaintiffs were the instant land.

There was no application for a building permit from the acquisition of the land to the transfer of the land. A No. 4

L insufficient to recognize that the plaintiffs actually intended to construct a factory on the land of this case.

C. The plaintiffs did not make any effort to use the land of this case for business purposes.

I seem to appear.

3) Therefore, the plaintiffs' primary arguments are without merit.

D. Determination on the conjunctive assertion

1) The acquisition of the pertinent land under Article 83-5 (1) 12 of the Enforcement Rule of the Income Tax Act

1) The former Building Act (wholly amended by Act No. 8974 of March 21, 2008)

Article 33 (Relation between Site and Road)

(1) The site of a building shall adjoin to a road (excluding a road exclusively dedicated to motor vehicle traffic) for two meters or more.

(c) Where it falls under any of the following subparagraphs, this shall not apply:

1. Where there is no problem in accessibility to the building; and

Land that is not used for the project due to justifiable reasons, such as changes in the urban planning after

any new prohibition or restriction on use due to any change, etc. in urban planning after acquisition of the land;

In addition to land, use is prohibited due to changes, etc. in existing urban planning after acquisition of land.

or the limited period of time is also included, and in such a case, it is used as non-business.

The period not considered as "the period of prohibition or restriction of use after acquisition of the land" shall be extended.

It will be said that (see Supreme Court Decision 2011Du28950 decided Feb. 14, 2013).

2) Considering the above circumstances as to the instant case, prior to the acquisition by the Plaintiffs

From the beginning, the instant land was in a state in which it was impossible to obtain a building permit due to the franchise, and the Plaintiffs were the Plaintiffs’ building permit.

No application is filed, and the report on the result of civil petition investigation is new under the Building Act around August 201 of Incheon Metropolitan City.

It does not constitute a decision to open a road (the Mayor of Incheon Metropolitan City shall designate the road under the Building Act).

In addition, there was an urban planning that prohibits or restricts the use of land, which is the head of Seo-gu Incheon Metropolitan City.

Since the prohibition and restriction is not extended, the existing urban planning after the plaintiffs acquired the land in this case.

It shall not be deemed that the period of prohibition or restriction has been extended due to the change, etc.

3) Therefore, the Plaintiffs’ preliminary assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed as it is without merit. It is so ordered as per Disposition.

this decision is rendered.

KimAi-be1

Head of North Incheon District Tax Office et al.1

The transfer income accrued to Plaintiff KimA on November 1, 2017 by the director of the North Incheon District Tax Office from November 1, 2017

C. The imposition of KRW 75,792,450 shall be revoked. The head of Seocheon District Tax Office on November 1, 2017

A disposition of imposition of capital gains tax of KRW 75,792,450 for the year 2016 against BB shall be revoked.

September 24, 2019

October 15, 2019

1. All of the plaintiffs' claims are dismissed.

2. The costs of the lawsuit are assessed against the Plaintiffs, including the part resulting from the participation. The office shall hold

1. Details of the disposition;

A. Plaintiffs’ acquisition and transfer of the instant land and reporting and payment of capital gains tax

1) On June 29, 201, the Plaintiffs acquired each 1/2 shares of 212-67 land 9,617 square meters in Seo-gu, Seo-gu, Incheon Special Metropolitan City (hereinafter “instant land”) in the process of voluntary auction on June 29, 201, and transferred it to the head of Jung-gu Seoul Special Metropolitan City on October 20, 2016.

2) The Plaintiff KimA reported and paid each transfer income tax to the head of the Defendant North Incheon District Tax Office, and the Plaintiff BranchB applied the long-term special deduction by deeming the instant land as the land for business.

B. Land for non-business use, each of the dispositions of this case and the procedure of the previous trial by the defendant

1) 피고는 양도소득세 실지조사(2017. 7. 17.〜2017. 8. 5.)를 한 다음, 이 사건 토지가 비사업용 토지에 해당하는 것으로 보아 장기보유특별공제를 배제하여 2017. 11. 1. 원고들에게 2016년 귀속 양도소득세 각 75,792,450원(가산세 포함)을 부과하는 처분을 하였다(이하 '이 사건 각 처분'이라 한다).

2) On September 18, 2017, the Plaintiffs were dissatisfied with each of the instant dispositions and filed an application for review on the legality of the taxation prior to taxation on September 18, 2017, but were dismissed on November 1, 2017. The Plaintiffs filed an appeal with the Tax Tribunal on February 6, 2018, but was dismissed on June 26, 2018.

C. The Do-dong Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City

1) The 212-dong, Seo-gu, Seo-gu, Incheon, Seo-gu, Incheon, the land of this case is 416,379 square meters (hereinafter “the reclaimed land”).