Suwon District Court 2012Guhap5207 ( December 28, 2012)

National Tax Service Review and Transfer 2011-0288 ( October 20, 2012)

The period during which the prohibition or restriction of use has occurred due to the enactment of the Ordinance shall not be deemed to have been used as land for non-business.

"Land which is not used for business due to justifiable reasons, such as changes in urban planning after the acquisition of the land, includes the land whose new use has been prohibited or restricted by the enactment of the ordinance of the local government after the acquisition of the land, and the project is not limited to the project for its original purpose.

Article 104-3 of the former Income Tax Act, Article 168-6 of the former Enforcement Decree of Income Tax Act, and Article 83-5 of the former Enforcement Rule of Income Tax Act

2013Nu3971 Revocation of Disposition of Imposing capital gains tax

IsaA

Head of Ansan Tax Office

Suwon District Court Decision 2012Guhap5207 Decided December 28, 2012

August 21, 2013

September 11, 2013

1. Revocation of a judgment of the first instance;

2. The disposition of imposition by the Defendant on October 6, 201 against the Plaintiff for the capital gains tax of 2009 shall be 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;

(1) On July 13, 191, the Plaintiff acquired and held 1/8 shares out of OO-dong OO-dong OO-dong, OO-dong, and 1/12, and transferred the instant land to the CC of the school foundation on December 30, 2009. (2) On March 2, 2010, the Plaintiff reported the tax base of transfer income on the instant land to the Defendant on December 2, 201, on the basis that the instant land is the land for business use, and paid OOO as capital gains tax, applying the general tax rate to the transfer income amount calculated by subtracting the special long-term holding deduction amount on the premise that the instant land is the land for business use.

(3) However, on October 6, 201, the Defendant deemed that the instant land constitutes non-business land, and excluded the special long-term holding deduction, thereby correcting and notifying the Plaintiff of the capital gains tax OOOOOO in 2009 (hereinafter “instant disposition”). (4) The Plaintiff dissatisfied with the instant disposition and filed a request for examination with the National Tax Service, but the said request was dismissed on January 26, 2012.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1 through 5 (including virtual numbers) and the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① Under Article 104-3(2) of the former Income Tax Act (amended by Act No. 9763, Jun. 9, 2009; hereinafter the same) and Article 168-14(3)1-2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21934, Dec. 31, 2009; hereinafter the same), the above woodland is donated to a lineal ascendant residing in Si, Gun and Gu adjacent to the forest area for at least eight years, and the above woodland is not deemed land for non-business. In light of the contents and legislative intent of the relevant laws, it should be interpreted that the deceased's lineal descendant, who is the party to the donation, resided in the neighboring land of this case for at least eight years, donated the above land to the Plaintiff, and the Plaintiff's lineal descendant, who was the maximum spouse of the deceased, did not constitute a non-business land under each of the above provisions, and thus, it is unlawful to deem the Plaintiff's use of the above land as a new urban planning ordinance.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) As to the Plaintiff’s assertion

In full view of the provisions of Article 104-3 (1) 2 and (2) of the former Income Tax Act, Article 168-14 (3) 1-2 of the former Enforcement Decree of the Income Tax Act, and Article 168-14 (3) 2 of the former Enforcement Decree of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 154, Apr. 30, 2010; hereinafter the same) of the former Enforcement Rule of the Income Tax Act, forest land constitutes land for non-business in principle. However, forest land should be excluded from land for non-business in exceptional circumstances, such as accepting the relevant forest land from the lineal ascendant residing in the Si

In addition, the principle of no taxation without law is a requirement for taxation, or a requirement for tax exemption or exemption, and the interpretation of tax laws is interpreted as a legal text, barring special circumstances, and it is not allowed to expand or analogically interpret without reasonable grounds (see, e.g., Supreme Court Decision 2002Du9537, Jan. 24, 2003).

In light of the above contents, language, and legislative intent of each provision mentioned above, "the lineal descendant and lineal descendant who is the other party to the donation excluded from the land for non-business use pursuant to the above provision refers only to the relative who is directly connected with the other party, and the spouse of the child, who is a lineal descendant snife like the plaintiff, is a spouse of the son who is a lineal descendant, and cannot be deemed to be included in the lineal descendant mentioned above (see, e.g., Supreme Court Decision 2002Du11905, Mar. 28, 2003)."

(2) As to the Plaintiff’s assertion

(A) According to Article 104-3 (1) 2 of the former Income Tax Act and Article 168-6 (1) of the former Enforcement Decree of the Income Tax Act, land category of 1 is actually owned for 5 years or more, and land is not used directly for 20/10 of the period exceeding 5 years prior to the date of transfer, and land is not used for 10/10 of the former Enforcement Decree of the Income Tax Act for 20 years after its enactment for 10 years or less (see Article 104-3 (2) of the former Enforcement Decree of the Income Tax Act). In the application of the provisions of Article 104-3 (1) of the Income Tax Act, land for 10/4 of the former Enforcement Decree of the Income Tax Act is classified as 5/100 or less for 20/100 of the land which is newly acquired for 10/6/100 or more of the land for non-business purposes, and such land is not used for 3/4 years or less for such reasons.

It is reasonable to recognize the fact that the plaintiff acquired the land of this case and the land of this case was developed as "the Bogeumjari Housing District, etc.", and even at a place similar to the land of this case, several apartment complexes have been constructed. Accordingly, it should not be deemed that the plaintiff used it as non-business use pursuant to Article 83-5 (1) 12 of the former Enforcement Rule of the Income Tax Act from January 12, 2001 to December 30, 2009 when the plaintiff sold the land of this case from January 12, 2009.

(C) Therefore, the instant disposition, which is based on the premise that the instant land was used as non-business land during the period prescribed in Article 104-3 (1) 2 of the former Income Tax Act and subparagraph 1 of Article 168-6 of the former Enforcement Decree of Income Tax Act, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition after revoking the judgment of the court of first instance and cancelling the disposition of this case.