Whether donated farmland was re-villageed and self-congested

From the time when the land was donated to a third party, it constitutes a non-business land due to the lack of proof that the land was registered as a resident or self-employed in the same or adjacent place as the farmland to the present day, and it cannot be said that it satisfies the requirements for re-village and self-defense by supporting the building.

Article 94 (Scope of Transfer Income Tax of the Gu)

Article 96 (Value of Transfer)

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition of rejection against the plaintiff on June 4, 2007, which exceeds KRW 91,969,130, among the disposition of imposition of capital gains tax of KRW 591,290,580 for the plaintiff on June 4, 2006, is revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or acknowledged in full view of the purport of the entire pleadings in the descriptions of Gap evidence 1, Gap evidence 2-1, Gap evidence 2-2, Gap evidence 4-1, 2, Eul evidence 1-5.

A. On June 17, 2002, the Plaintiff: (a) donated the instant land to ○○○○○-3, 993 square meters from Changwon-si, Changwon-si; (b) ○○○○○○○○○○, 2,645 square meters (hereinafter “instant land”); and (c) on December 29, 2006, transferred the instant land to ○○○○○○○○○○○ (hereinafter “○○○○○○”) Co., Ltd. (hereinafter “○○○○”) in KRW 1,894,050,000.

B. On February 28, 2007, the Defendant reported capital gains tax of KRW 591,290,582 calculated by calculating the capital gains amount based on the actual transaction price of the instant land in relation to the transfer of the instant land, and did not pay the said amount. However, the Defendant imposed and notified capital gains tax of May 8, 2007 to the Plaintiff.

"C. On May 28, 2007, the plaintiff filed a request for reduction or correction of the part exceeding KRW 91,969,130 of the transfer income tax calculated on the basis of the standard market price of the land of this case, since the land of this case does not fall under the non-business land under Article 104-3 of the Income Tax Act. However, on June 4, 2007, the defendant issued a disposition rejecting the above request for correction (hereinafter "the disposition of this case") against the plaintiff on the ground that the land of this case constitutes non-business land". The plaintiff appealed against the disposition of this case, but filed an objection against the Director of Busan Regional Tax Office on July 19, 2007, but the Commissioner of the National Tax Service filed a request for examination on August 30, 2007, but the Commissioner of the National Tax Service dismissed the request on December 13, 2007.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

① Since Park Young-chul, supported by the Plaintiff, continued to cultivate the instant land from before being donated to the Plaintiff to the time of transfer after donation, the instant land constitutes a self-owned farmland, not a non-business land.

(2) Even if it is not a family self-employed farmland, since the Plaintiff acquired the instant land and then was incorporated into a residential area for urban development, and most of the instant land was designated and publicly announced as a road site, the instant land does not constitute a non-business land, the use of which is prohibited or restricted pursuant to Article 104-3 (2) of the Income Tax Act and Article 168-14 (1) 1

③ Even if not, the Plaintiff transferred the instant land by requesting the authoritative interpretation of the National Tax Service, which is not a non-business land in the case of incorporation into a residential area and designation of a proposed road site. Therefore, the Defendant’s imposition of capital gains tax based on the actual transaction price is contrary to the principle of trust and good faith and trust protection.

④ Even if the transfer value of the instant land cannot be calculated as the standard market price at the time of transfer, the acquisition value of the instant land shall be calculated as the retroactive appraisal value at the time of acquisition, not the publicly assessed individual land price reported by the

(b) Related statutes;

Article 94 (Scope of Transfer Income Tax of the Gu)

Article 96 (Value of Transfer)

Article 104-3 (Scope of Land for Non-business)

Article 162 (Time of Transfer or Acquisition)

Article 163 (Necessary Expenses for Transferred Assets)

Article 168-7 (Determination of Land Category)

Article 168-8 (Scope, etc. of Farmland)

Article 168-6 (Standards for Period of Non-business Land)

Article 168-14 of the former Enforcement Decree of the Income Tax Act (Criteria for Determination of Land not Deemed Land for Non-business Use due to Inevitable Reasons)

Article 60 (Principles, etc. of Appraisal)

Article 61 (Appraisal of Real Estate)

Article 30 (Determination of Urban Management Planning)

Article 64 (Development Acts in Sites of Urban Planning Facilities)

Article 61 (Development Acts in Sites of Urban Planning Facilities)

Article 2 (Definitions)

Article 6 (Restriction on Ownership of Farmland)

C. Determination

(1) Judgment on the part of the Plaintiff’s assertion

According to Articles 94(1)1 and 96(1) and (2)8 of the former Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007), income accruing from the transfer of land shall be deemed capital gains, but the transfer value shall be determined by the actual transaction price between the transferor and transferee at the time of transfer of the relevant asset (hereinafter referred to as "actual transaction price"), and where the land is transferred by December 31, 2006, the transfer value shall be determined based on the standard market price at the time of transfer: Provided, That where the relevant land is a non-business land under Article 104-3 of the Income Tax Act, it shall be determined that the actual transaction price at the time of transfer is lower than the actual transaction price at the time of transfer, and Article 104-3(1)1 (a) of the former Income Tax Act and Article 16-8(1) and (2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008) shall be excluded from the farmland in the same land category and area. 3.

According to each of the statements in 1 to 8, 1984, Eul evidence Nos. 4, Eul evidence Nos. 7-1 to 7-8, the plaintiff was found to reside and live in Busan City until June 14, 2002, as a donation of the land of this case from the ppuri Gambro on August 24, 1984, and there is no other evidence to prove that the plaintiff actually resided in the same or a location adjacent to the Changwon, which is the location of the land of this case, and that the land of this case does not fall under the non-business land of this case, as well as the exceptional reasons stipulated in each subparagraph of Article 168-8 (3) of the former Enforcement Decree of the Income Tax Act. Even if the plaintiff supported Gamboo, as the plaintiff's assertion, it cannot be viewed that the plaintiff re-entered the land of this case, and even if the plaintiff supported Gamboo, this part of the judgment of the court below cannot be accepted.

(2) Judgment on the part of the Plaintiff’s assertion

According to Article 104-3 (2) of the former Income Tax Act and Article 168-14 (1) 1 of the former Enforcement Decree of the Income Tax Act, even if land for non-business use is acquired, and there are unavoidable reasons such as prohibition or restriction of use pursuant to statutes, such use may not be deemed land for non-business use for a limited period of time.

According to the records of evidence No. 5, the land area of this case was designated and announced as an urban development zone on December 8, 2004, and part of the above land was designated as a road planning facility (road) under Article 2004-352 of the Gyeongnam-do Notice on December 8, 2004 under Article 30 of the National Land Planning and Utilization Act. As seen earlier, the land category of this case is "the answer" and the land category of this case falls under the non-business land that the plaintiff, the owner of this case, did not re-be and do not own a village. Furthermore, in this case, there is no trace of the plaintiff's attempt or effort to construct a building which is not an urban planning facility (road) on the land of this case until the plaintiff acquired the land of this case and transferred it to ○○○○○do, and the development activities, such as new construction of a building, were restricted or restricted, and the use of the land of this case was not restricted or restricted. Thus, the plaintiff's use of the land of this case is not accepted.

(3) Judgment on the Plaintiff’s assertion

In general, in order to apply the principle of trust and good faith to the tax act of the tax authority in tax legal relations, the tax authority must name the public opinion that is the object of trust to the taxpayer. In addition, in order to establish non-taxable practices under Article 18(3) of the Framework Act on National Taxes, the tax authority must not impose taxes on the tax authority for a considerable period of time, as well as on any special circumstance with the knowledge that the tax authority is able to impose taxes on the relevant matter, and such public opinion or opinion must be expressed explicitly or implicitly. However, unlike mere omission of taxation, there must be circumstances to deem that the tax authority expressed its intention not to impose taxes on the state of non-taxation for a considerable period of time, and in such cases, the application of the above principle should be denied if the tax authority’s expression of intention is merely a general theoretical opinion (see, e.g., Supreme Court Decisions 97Nu1065, Jan. 21, 200; 95Nu10181, Nov. 14, 1995).

In light of the above legal principles, even if the plaintiff's statements are based on Gap evidence Nos. 3, Gap evidence No. 8-1 and No. 2 cited as the ground for the plaintiff's assertion, it is merely a reply given by the National Tax Service to determine whether the land constitutes non-business land pursuant to the provisions of the Income Tax Act and the Enforcement Decree of the same Act, not the non-business land in such a case, but the tax authority's public opinion that the plaintiff would impose capital gains tax on the basis of the standard market price, not the actual transaction price, in calculating the capital gains tax. Thus, this part of the plaintiff's assertion cannot be accepted.

(4) Judgment on the Plaintiff’s assertion

According to Article 163(9) of the former Enforcement Decree of the Income Tax Act and Articles 60 and 61 of the Inheritance Tax and Gift Tax Act, the actual transaction price required for acquiring donated assets shall be based on the market price as of the date of donation, and in cases where it is difficult to calculate it, it shall be based on the publicly assessed individual land price under the Public Notice of Values and Appraisal of Real Estate Act. The fact that the Plaintiff reported the acquisition price of the land of this case to a publicly assessed individual land price, which is not the market price as of the date of donation.

3. Conclusion

Therefore, the defendant's disposition of this case is legitimate, and the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.