Daejeon District Court 2012Guhap2896 ( October 17, 2012)

Cho Jae-chul2012 Before 1474 (2012.0726)

If real estate is transferred for public activities under the Tourism Promotion Act, "the date on which the plan to create a tourist destination is approved" shall be regarded as the standard market price assessment basis.

It is reasonable to see that real estate for public activities under the Tourism Promotion Act is transferred as the standard market price under Article 85 of the Restriction of Special Taxation Act in the case of "the date on which the implementation plan is approved under Article 91 of the National Land Planning and Utilization Act, which is similar to the date on which the implementation plan is approved."

2012Nu2694 Revocation of taxation disposition

The AA

Decree of the National Tax Service

Daejeon District Court Decision 2012Guhap2896 Decided October 17, 2012

March 28, 2013

April 18, 2013

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of capital gains tax of KRW 000 on March 10, 2012 against the Plaintiff is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Daecheon Bath-si, Chungcheongnam-do (hereinafter referred to as the "the tourist destination of this case") located in XX Dong, Chungcheongnam-do. Around January 21, 1969, Mancheon-do, designated and publicly announced as a tourist destination pursuant to Article 16 of the former Tourism Promotion Act (amended by Act No. 2285 of January 18, 1971; hereinafter the same shall apply) and then another surrounding area of 1.31mm2 around November 28, 1983 was designated and publicly announced additionally as a tourist destination pursuant to Article 46 of the former Tourism Act (wholly amended by Act No. 3910 of December 31, 1986; hereinafter the same shall apply) and became final and conclusive as the area of the tourist destination of this case.

B. On July 5, 1991, the Plaintiff acquired the ownership of 00 east 198 m2, 000 m2, 000 m2, 1,689 m2, and 360 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000. The instant real estate located within the instant tourist destination was designated or incorporated as the instant tourist destination around November 28, 1983, which is the date of the public announcement of the designation of the instant tourist destination.

C. After the amendment of the plan to develop the tourist destination in this case was publicly announced on November 8, 1985 by the Presidential Decree No. 66 on Nov. 8, 1985, the development plan of the tourist destination in this case was revised and publicly announced on Nov. 8, 1985, and was divided into the first, second, and third.

The development project was implemented, and according to Article 52 of the former Tourism Promotion Act (wholly amended by Act No. 8343 of Apr. 11, 2007, hereinafter referred to as the " Tourism Promotion Act"), the land in the area of Taecheon Bathing Beach Tourist Site, which was not developed on Aug. 10, 2005, was designated as Zone Three and the public announcement of the amendment to the plan for the creation of the tourist destination of this case for Zone Three was made (hereinafter referred to as the "public announcement of the amendment to the plan for creation of tourist destination of this case").

D. On December 29, 2006, the Plaintiff transferred the instant real estate to Bocheon-si in the process of acquiring a public site for a district No. 3 of the instant tourist destination development project (hereinafter “instant real estate transfer”).

E. The plaintiff acquired the real estate of this case from August 10, 2005, which was the date of the change announcement of the creation plan of this case, and the transfer of this real estate of this case was determined to apply special provisions such as Article 85 of the former Restriction of Special Taxation Act (amended by Act No. 8146 of Dec. 30, 2006, hereinafter referred to as the " Restriction of Special Taxation Act"), and reported and paid capital gains tax to the defendant on February 28, 2007 on the basis of standard market price not actual transaction price.

F. On November 28, 1983, the Defendant: (a) determined that the instant real estate was not subject to special provisions such as Article 85 of the Restriction of Special Taxation Act, since the Plaintiff acquired the instant real estate after the final determination of the instant tourist destination area; (b) calculated capital gains tax based on the actual transaction price; and (c) imposed tax on the Plaintiff on March 10, 2012, including capital gains tax for the year 2006, increased or adjusted to the Plaintiff, including capital gains tax for the year 2006, and 360 (hereinafter “instant disposition”).

G. On March 21, 2012, the Plaintiff dissatisfied with the instant disposition, brought an appeal with the Tax Tribunal on March 21, 2012, and dismissed on July 25, 2012.

H. Meanwhile, the former Income Tax Act of August 19, 2005 (No. 12, 2006) within the jurisdiction of Boan-si where the instant real estate was located.

30. Designation was made as a designated area, i.e., speculative areas, under Article 104-2(1) of the Income Tax Act (amended by Act No. 8144, hereinafter referred to as "Income Tax Act").

[Reasons for Recognition] The facts without dispute, Gap evidence 1 through 12 (if available, including the number, hereinafter the same shall apply) and Eul evidence 1 to 5, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The special provisions of Article 85 of the Restriction of Special Taxation Act shall apply to the calculation of transfer income tax from the transfer of real estate in this case. Even if the special provisions of the above special provisions are not applied to the transfer of real estate in this case, and if the Boan City Mayor, etc. transfers the land acquired on or before August 10, 2005, which was from August 10, 2005, the date when the change of the creation plan for the tourist in this case was announced, the transfer income tax is applied on the basis of the standard market price, and the plaintiff did not report and pay the transfer income tax according to the standard market price, and the defendant did not take any measures to be close to five years thereafter, so the disposition in this case

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Details and purpose of legislation of Article 85 of the Restriction of Special Taxation Act

Article 85 of the Restriction of Special Taxation Act, and Article 104-2 (1) of the Income Tax Act (hereinafter referred to as the " speculative area"). The real estate in the designated area under the provision of Article 85-2 (1) of the Income Tax Act is transferred to or expropriated in the public project operator on or before December 31, 2006, and the date on which the resident acquires the real estate in the speculative area under the provision of each subparagraph of Article 85 of the Restriction of Special Taxation Act (the date of designation of the planned area for housing development, the date of designation of the planned area for industrial complex, the date of public announcement of the plan for housing development, and the date of public announcement of the plan for compensation). (2) The above date on which the first two years retroactively from the date of public announcement of the authorization of projects; and (3) The date on which the speculative area becomes designated after the date on which the speculative area becomes designated, and (3) the date on which the real estate is calculated for the purpose of calculating the actual market price of each designated area or zone.

(2) Standard market price assessment basis

① With respect to the date falling under the above, Article 85 subparagraph 5 of the Restriction of Special Taxation Act, and Article 85 subparagraph 5 of the Enforcement Decree of the Restriction of Special Taxation Act (the "Enforcement Decree of the Restriction of Special Taxation Act"), in case of real estate transferred under Acts other than Article 3 of the Housing Site Development Promotion Act, Article 7-3 of the Balanced Regional Development and Support for Local Small and Medium Enterprises Act, Article 4 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and Article 15 of the Act on Acquisition of and Compensation for Local Small and Medium Enterprises in the United States Armed Forces, "the date prescribed by the Presidential Decree as the planned area, area, development area, designation of compensation plan, and other similar date for the project area to which the real estate belongs under the above Acts shall be the date prescribed by the Presidential Decree. The main sentence of Article 79-2 (1) 5 of the Enforcement Decree of the Restriction of Special Taxation Act (the "Enforcement Decree of the Restriction of Special Taxation Act") provides for the "the date prescribed in subparagraphs 1 through 5 and 2 of the above Act.

(3) The standard market price at the time of the transfer of real estate under the Tourism Promotion Act;

As seen earlier, the Plaintiff merely transferred the real estate to the third district development project of this case pursuant to the construction plan of this case on December 29, 206, and the real estate transfer of this case was achieved pursuant to the provisions of Article 58 of the Tourism Promotion Act. On the other hand, the standard market price of the land is not expressly stipulated in each subparagraph of Article 85 of the Act and Article 79-2(1) [Attachment Table 7] of the Enforcement Decree of the Restriction of Special Taxation Act for the development plan of the first time after the 7th anniversary of the date of the designation of the tourist destination development plan of this case. Therefore, it is difficult to interpret the provisions of Article 85 subparag. 5 of the Restriction of Special Taxation Act and Article 79-2(1) [Attachment 7] as the standard market price of the tourist destination development plan of the first time after the 2nd anniversary of the date of the designation of the tourist destination development plan of this case, and the first time after the 2nd anniversary of the establishment of the plan.

(4) Criteria for imposing capital gains tax on the transfer of the instant real property

The plaintiff's disposal of real estate under the Tourism Promotion Act is recognized as having been between July 5, 191 and January 30, 2001 as the time when the plaintiff acquired the real estate in this case before December 29, 2006, and the time when the real estate in this case was transferred from July 5, 199 to January 28, 201. In addition, according to Article 20 of the Restriction of Special Taxation Act, the real estate in this case was designated as a tourist destination on November 28, 1983; Article 208 of the Restriction of Special Taxation Act (the date when the real estate in this case was transferred from August 28, 1983 to the end of 203 to August 10, 2005, and Article 208 of the Restriction of Special Taxation Act (the date when the approval of the change of the development plan of the real estate in this case was transferred from August 10, 2005 to the end of 200.

3. Conclusion

If so, the plaintiff's claim of this case is accepted due to the reasons, and the judgment of the court of the first instance which concluded otherwise is unfair, and it is so decided as per Disposition by the defendant to cancel the disposition of this case.