Supreme Court-2012-Du-15371 ( October 30, 2014)

Where the land of one parcel is divided into the land for business and the land for non-business use, each different tax rate shall be applied.

In the latter part of Article 104 (1) of the former Income Tax Act, the premise that one asset falls under at least two tax rates is one asset, and where one parcel of land is divided into the land for business and the land for non-business, the different tax rates should be applied.

Scope of land for non-business under Article 104-3 of the former Income Tax Act

2014Nu8003 Revocation of Disposition of Imposing capital gains tax

BOO

O Head of tax office

September 9, 2015

October 14, 2015

1. The following part of the judgment of the first instance shall be revoked:

The defendant's action against the plaintiff on December 1, 2009 seeking revocation of the part exceeding KRW 000 of the capital gains tax imposition disposition against the plaintiff on December 1, 2009 is dismissed.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 80% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of capital gains tax of KRW 000 against the plaintiff on December 1, 2009.

1. Details of the disposition;

A. On August 4, 1970, the Plaintiff acquired and owned an OO-OO-OO miscellaneous miscellaneous land (hereinafter “instant land”) and sold the instant land at a voluntary auction on October 18, 2007, and the Plaintiff did not report the transfer income tax on the transfer of the instant land. However, on December 1, 2009, the Defendant excluded the special deduction for long-term holding from the special deduction for long-term holding, and imposed and notified 000 won (including additional tax) for the transfer income tax for the year 2007 by applying the heavy taxation rate of 60% to the Plaintiff on December 1, 2009.

(C) Although the Plaintiff filed a lawsuit seeking revocation of the initial disposition of this case, the first instance court and the lower court rejected the lawsuit and appealed by Supreme Court Decision 2012Du15371. The Supreme Court rendered an appeal on October 30, 2014, the Supreme Court reversed, and remanded the judgment of the lower court to the effect that, inasmuch as the part of the instant land is classified into the land for business and the land for non-business use, the portion of the land for non-business use and the portion of the non-business use is considered as one asset, and thus, the different tax rates are applied accordingly. However, the lower court did not go further to determine whether the part of the instant land is the land for non-business use.”

D. According to the result of the commission of measurement and appraisal on the head of the OO branch of the Korea Land Information Corporation in this Court, the area of a drainage channel among the instant land is 00 square meters, and the area of a mountain channel is 00 square meters.

E. On September 3, 2015, the Defendant rendered a decision of correction to reduce the portion (00 won) exceeding 00 won of the initial disposition of this case (hereinafter referred to as “instant disposition”) by applying the special deduction for long-term holding, deeming that the portion of the above drainage and mountain trails among the instant land does not correspond to the land for non-business use, and thus, applied the special deduction for long-term holding (hereinafter referred to as “the disposition of this case where the disposition of imposition of capital gains tax of KRW 000 on December 1, 2009, which was reduced” (hereinafter referred to as “the disposition of this case”), and there is no dispute over the following facts: Gap, 1, 7, 12, 12, 1 and 3, each of the entries in the evidence No. 1 and 3, the result

2. Determination as to the legitimacy of the instant lawsuit

As seen earlier, the portion (00 won) exceeding KRW 000 among the initial disposition of this case was corrected by reduction. As such, among the lawsuit of this case, the part on the claim for revocation corresponding thereto is unlawful as it does not exist.

3. Whether the principal portion among the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) Since the land category of the instant land is miscellaneous land, and its actual status is forest land, it should be viewed as forest land when determining the female portion of the non-business land.

"However, the plaintiff owned not less than 20 years before December 31, 2006 and transferred the land of this case before December 31, 2009, so the land of this case does not fall under the land for non-business use pursuant to Article 104-3 (2) of the former Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007; hereinafter referred to as the "Act") and Article 168-14 (3) 2 of the former Enforcement Decree of Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008; hereinafter referred to as the "Enforcement Decree") and Article 168-14 (3) 2 of the former Enforcement Decree of Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008).

(2) Although the Plaintiff filed an application for development of the instant land several times, the application for development was rejected by the OO-gu Office on the ground that the instant land is located in the natural green area, and since the instant land has been subjected to 50% tax reduction or exemption by the O-Gu Ordinance as the land for public facilities, the instant land constitutes land falling under any inevitable cause as prescribed by the Ordinance of the Ministry of Finance and Economy, taking into account the legal restrictions on the land prohibited or restricted for use pursuant to Article 168-14 (1) 1 of the Enforcement Decree, or other public interests or inevitable reasons as stipulated in Article 168-14 (1) 3 of the Act, or the current status, reason, or current status of the land acquisition.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The instant land was designated as a natural green area on April 29, 1966, and was in contact with the station of the OOsan Urban Natural Park Site. The land category was the site at the time of the Plaintiff’s acquisition, but the land classification was changed to the miscellaneous land on May 15, 1978 upon the ex officio investigation by the OO-gu Office.

(2) On April 21, 2006, the Plaintiff applied for permission for a land transaction contract for the instant land to the head of the OO as a material warehouse with the RedO, which was seeking to purchase the instant land on April 21, 2006. At the time, the head of the OO was one side of the instant land, which is a retaining wall, and part of the instant land is a big slope in the land, and it is improper to use it as a new material warehouse due to the installation of rainwater, and it is reasonable to grant permission based on the results of the permission after prior to the permission for development, such as changing the form and quality, etc., and the Plaintiff did not file an application for permission for development of the instant land with the head of OO.

(3) 이 사건 토지의 가운데 부분에는 등산로와 배수로가 있고, 그 남쪽과 북쪽으로 급경사면이 있는데, 급경사면은 모두 잡초와 넝쿨식물로 뒤덮여 있으며, 이 사건 토지 의 남쪽 경계면 부근에는 어린 소나무 4그루가 식재되어 있고, 이 사건 토지의 서쪽 경계 부근에는 느티나무로 보이는 나무가 있다.

[Ground of recognition] Each entry of Gap evidence Nos. 2, 5, and 10 (including paper numbers), the result of the first instance on-site inspection, the result of the fact-finding to the head of theOO of the first instance court

D. Determination

(1) 먼저, 이 사건 토지의 현황이 임야라는 원고의 주장에 관하여 살피건대, 앞서 본 바와 같이 이 사건 토지는 등산로, 배수로, 잡초 및 넝쿨식물로 뒤덮인 급경사면으로 이루어져 있고, 이 사건 토지의 경계 부근에 나무 몇 그루가 있기는 하나, 그것만으 로는 이 사건 토지의 현황이 임야라고 볼 수 없으므로, 원고의 이 부분 주장은 이유 없다.

(2) Next, the following is examined as to whether the instant land falls under the land prohibited or proposed by the law after acquiring it, and as seen earlier, the Plaintiff’s application for permission for a land transaction contract applied by the Plaintiff cannot be deemed to fall under the land prohibited or restricted by the law after acquiring the instant land, and there is insufficient evidence to acknowledge it solely on the written evidence Nos. 14 and 18, and there is no other evidence to acknowledge it.

In addition, in order to apply the land of this case to the land falling under the inevitable reasons as prescribed by the Ordinance of the Ministry of Finance and Economy in consideration of the legal restrictions, grounds for acquisition or utilization status, etc. due to the public interest and other inevitable reasons, the land of this case shall fall under the lower part of each subparagraph of Article 83-5 (1) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 71 of Apr. 14, 2009), but there is no evidence to acknowledge it, and therefore, the plaintiff's assertion

4. Whether the part of penalty tax in the disposition of this case is legitimate

A. The plaintiff's assertion

The plaintiff transferred the land in this case by auction and did not have any amount distributed to the plaintiff out of the auction proceeds. In this case, it is difficult to expect the plaintiff to report and pay the transfer income tax, and there is a justifiable reason that the plaintiff did not report and pay the transfer income tax, and therefore, at least the amount of additional tax should be revoked.

B. Determination

(1) In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed pursuant to the provisions of the separate tax law in cases where a taxpayer violates various obligations, such as a return and payment, without justifiable grounds, and the taxpayer’s intention and negligence is not considered. On the other hand, where there is a circumstance where a taxpayer is deemed to have not been aware of his/her obligations and it is unreasonable to expect the taxpayer to fulfill his/her obligations, or where there is a circumstance where it is unreasonable to expect that the taxpayer to fulfill his/her obligations, etc., and where there is a justifiable reason that it is not attributable to his/her duty, it may not be imposed (see, e.g., Supreme Court Decisions 96Nu15404, Aug. 22, 1997; 2003Du4089, Apr. 15, 2005; see, e.g., Supreme Court Decisions 91Nu13094, Nov. 26, 1991; 201Du394197

(2) In light of the above, the circumstance alleged by the Plaintiff is merely that the Plaintiff did not report and pay the transfer income tax due to the fact that the Plaintiff did not pay the transfer income tax due to the land or misunderstanding of laws and regulations, and thus, it does not constitute a case where there is a justifiable reason that does not mislead the Plaintiff’s negligence

5. Conclusion

Therefore, the part seeking revocation of the part exceeding KRW 000 among the lawsuit of this case is unlawful and dismissed. The plaintiff's claim seeking revocation of the remaining part is dismissed as it is without merit. The corresponding part of the judgment of the court of first instance, which has different conclusions, is revoked, and the plaintiff's lawsuit is dismissed, and the remaining appeal of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.