National High Court 2007J 4885 (Law No. 13, 2008)

Scope of land for parking lot may be excluded from non-business land;

Whether a parking lot site is a non-business land or not should be determined on the basis of whether the owner has engaged in the parking lot business, and the operation of the parking lot business is required to operate the parking lot under his/her responsibility and calculation, and it is excluded from the case where a third party operates the parking lot due to the relationship of lease, loan of use

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

On November 9, 2007, the Defendant revoked the disposition of refusal against the Plaintiff on November 9, 2006 for the correction of the transfer income tax belonging to the year 2006.

1. Circumstances of the disposition;

A. On December 27, 2006, the Plaintiff transferred the building of 196-12 large 537.9 square meters and the building of 43.56 square meters among the above land to the Do-dong, Do-dong, 196-12 large 537.9 square meters and the building of 43.56 square meters among the above land on January 31, 2007, calculated gains on transfer based on the actual transaction price of 1,261,353,00 won and paid capital gains tax of 260,414,870 won by scheduled return.

B. On February 22, 2007, the Plaintiff filed a claim for correction with the Defendant for refund of KRW 118,557,040, which was calculated by applying the standard market price to the transfer income tax of KRW 141,857,832 calculated by applying the standard market price as the transfer value, by deeming the land in this case as the land for non-business use at the time of filing a return on and paying the transfer income tax to the Defendant. However, the Defendant rejected the Plaintiff’s claim for correction on November 9, 2007 on the ground that the land in this case constitutes the land for non-business use (hereinafter “disposition in this case”).

C. On November 15, 2007, the Plaintiff appealed to the Tax Tribunal, but was dismissed by the said Tribunal on June 13, 2008.

[Reasons for Recognition] Uncontentious Facts, Evidence Nos. 1, 3, Evidence Nos. 2-1, 2-1, 1, and pleading

The purport of the whole

2. Whether the disposition is lawful;

A. The plaintiff's assertion

From May 195, the Plaintiff operated a parking lot business after establishing on the instant land from May 1995. Since the said land falls under “land excluded from non-business land” under Article 104-3(1)4(c) of the Income Tax Act and Article 168-11(1)2(c) of the Enforcement Decree of the Income Tax Act, the transfer value of the said land should be based on the standard market price at the time of transfer, and the instant disposition on different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 104-3 (1) 4 (c) of the Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007; hereinafter the same) provides that the land falling under the land other than the farmland, forest land, and stock farm other than the land prescribed by the Presidential Decree, excluding the land directly related to the residence or business, shall be determined as the land for non-business use. Article 168-11 (1) 2 (c) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008; hereinafter the same shall apply) delegated by the person operating the parking lot as the land for non-business use can be excluded from the land for non-business use. The issue of whether the land in this case, which is the parking lot, is the land for non-business use shall be determined on the basis of whether the Plaintiff engaged in the parking lot business, and the operation of the parking lot shall be excluded from the case where a person does not operate the parking lot directly under his own responsibility and account.

갑 18, 20호증, 을 2호증의 각 기재에 변론 전체의 취지를 종합하여 보면, 원고는 1987. 경 미국으로 이주한 후 그 곳에서 계속 거주하여 왔고 이 사건 토지 위에 설치된 노상주차장(이하 '이 사건 주차장'이라 한다)을 직접 운영할 수 없었던 사실, 이에 원고는 석◎◎, 석◆◆에게 이 사건 주차장의 관리ㆍ운영을 맡겨 왔는데 그들로부터 주차 장 영업과 관련하여 1996.경부터 1999.경까지는 매월 2,600,000원씩을, 2000.경부터 2002. 6.경까지는 매월 2,300,000원씩을, 2003. 7.경부터 2005. 6.경까지는 매월 2,600,000원씩을, 2006. 7.경부터 이 사건 토지의 양도시까지 매월 2,200,000원씩을 지급받은 사실을 인정할 수 있고, 위 인정사실에다가 원고는 석◎◎, 석◆◆과의 사이 에 이 사건 주차장 영업수익과 관련하여 위와 같이 매월 일정 금원을 지급받은 것 외 에는 별도로 어떠한 정산도 이루어진 적이 없는 점 등을 종합하여 보면 원고는 이 사건 주차장을 임대하거나 위탁경영하게 하였을 뿐 자신의 계산과 책임 하에 이를 운영 하였다고 볼 수 없다고 할 것이고, 갑 6, 11호증, 갑 8호증의 1, 3, 갑 9호증의 1 내지 4의 각 기재는 위 인정을 뒤집기에 부족하다.

Therefore, the Plaintiff’s assertion on the premise that the instant land is excluded from the non-business land under Article 104-3(1)4(c) of the Income Tax Act, and Article 168-11(1)2(c) of the Enforcement Decree of the Income Tax Act is without merit. The instant disposition that the Defendant rejected the Plaintiff’s request for correction of capital gains tax by deeming the instant

3. Conclusion

Then, the plaintiff's claim for objection case is dismissed without reason, and it is identical to the order.

partnership.