early 2009 Mine3181 (Law No. 10, 2010)

Since the business site of LPG charging station falls under the non-business land, the disposition imposing capital gains tax is legitimate.

In light of the fact that the business site of the LPG filling station is not stipulated as one of the non-business land, and there is no specific data on the fact that the three floors of the filling station were remodeled for residential purposes or used as a room or a kitchen, etc., it cannot be recognized that it was used for residential purposes.

2010Guhap4247 Revocation of Disposition of Imposing capital gains tax

Doz.

O Head of tax office

1. The plaintiff's claim is dismissed.

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

The imposition of capital gains tax of KRW 26,852,752 on the Plaintiff on June 8, 2009 by the Defendant shall be revoked.

1. Details of the disposition;

○ The Plaintiff acquired the buildings and lands under the following subparagraphs on March 11, 2005 and operated a LPG charging station at the same time, and transferred the buildings to this BB on July 26, 2006 (hereinafter referred to as “the buildings listed in paragraph 5 below”) (hereinafter referred to as “the filling building of this case”, and the land excluding the buildings is referred to as “the transferred land of this case”).

After ○, the Plaintiff sold the transfer to the Defendant on the basis of the standard market price, and reported the transfer income tax to the Defendant.

However, on June 8, 2009, the Defendant calculated transfer margin on the basis of the actual transaction price on the ground that the land in paragraph (1) Nos. 140 square meters and 687 square meters among the land in paragraph (3) of the said No. 1 (hereinafter collectively referred to as "the instant land") constitutes land subject to general aggregate taxation of property tax under the Local Tax Act, and issued the instant disposition that determined and notified KRW 26,852,752 as the transfer income tax for the year 2006.

○ The Plaintiff appealed and filed an appeal with the Tax Tribunal on August 19, 2009. However, the Tax Tribunal dismissed the appeal on August 10, 2010, and the Plaintiff filed the instant lawsuit on September 30, 2010.

[Ground of recognition] Facts without any dispute, Gap evidence No. 1, Eul evidence No. 1-2, Eul's statement and the purport of whole pleading No. 4

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) In light of the fact that the land at issue in this case was used as the project site of the LPG charging station operated by the Plaintiff, it was forced to hold it in accordance with the relevant laws, and the construction and installation of facilities on the ground is restricted, etc., the land at issue in this case shall be excluded from the land directly related to the business under Article 168-11(1) of the Enforcement Decree of the Income Tax Act.

In addition, the Safety and Business Control Act of Liquefied Petroleum Gas provides that the corner of charging facilities shall maintain a certain distance from the outer surface to the boundary of the place of business. Since the key land of this case is located within the safety distance, it shall be viewed as the land for business.

(2) From May 29, 199 to January 10, 2006, the Plaintiff used three floors of the instant charging station building (floor area of 79.9 square meters) for residential purposes. As such, the portion corresponding to the land annexed to the instant land in question should be excluded from the land for non-business purposes, and the number of land annexed to the instant land should be re-calculated.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

(1) Whether the land of this case constitutes non-business land

In light of the principle of no taxation without law, or the requirements for non-taxation or tax reduction and exemption, the interpretation of tax laws and regulations shall be interpreted as the text of the law, barring special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds (see, e.g., Supreme Court Decision 2002Du6781, May 27, 2004).

Therefore, Article 104-3 (1) 4 (c) of the former Income Tax Act (amended by Act No. 8144, Dec. 30, 2006; hereinafter the same) provides that the land prescribed by the Presidential Decree as being directly related to residence or business shall be excluded from the land for non-business use in consideration of the fulfillment of obligations under related Acts related to the status of use of the land and the amount of revenue, etc., and accordingly, Article 168-11 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19687, Sep. 22, 2006; hereinafter the same) lists the scope of the land excluded from the land for non-business use. Since the business site of the LPG charging station, such as the land in question, is not defined as one of the land for non-business use, it cannot be deemed that the land in question was used as the land for filling, or that it is located within the safe distance of filling facilities, etc. under the Safety and Sales of Liquefied Petroleum Gas Act.

Rather, according to Article 1104-3 (1) 4 (b) of the former Income Tax Act and Article 182 (1) 2 and 3 of the former Local Tax Act (amended by Act No. 7972, Sep. 1, 2006; hereinafter the same), land subject to separate aggregate taxation or separate taxation of property tax is excluded from non-business land, but land subject to general aggregate taxation is excluded from non-business land, and land subject to general aggregate taxation is subject to non-business land. According to the statement in subparagraph 4 of Article 1104-3 (1) 4 (b) of the former Income Tax Act, the fact that the transfer of land in this case is classified as follows at the time property tax was imposed in 205 and 206.

Therefore, the key land of this case constitutes a land subject to general aggregate taxation and a non-business land. Therefore, the Plaintiff’s assertion on this part is without merit. The Plaintiff’s assertion on this part is without merit.

(2) Whether the Plaintiff used the instant charging building for residential purposes

According to the evidence evidence No. 5, the plaintiff was found to have moved to the filling station building of this case on May 29, 199 on his resident registration, but was registered as a transfer on January 10, 2006. The following circumstances are acknowledged, namely, ① the 1st floor was constructed as the office, ② the 2nd and the 3nd floor were constructed as the house, but the 3nd floor was applied for the change of the purpose of use of the 3nd floor as the office and the 3nd floor was closed, ② there was no detailed evidence on the fact that the plaintiff moved to the filling station building of this case on May 29, 199, or used as the 3nd floor for the purpose of business due to the operation of the filling station of this case, ③ the possibility that the plaintiff could not be found to have moved to the filling station of this case on the ground that there was a lack of evidence to acknowledge that the plaintiff moved to the 3nd floor for the purpose of residence registration.

Therefore, the plaintiff's assertion on this part is without merit.

(3) Written theory

Ultimately, the disposition of this case which imposes capital gains tax on the basis of the actual transaction price by considering the issues of this case as non-business land.

3. Conclusion

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