Whether a site subject to a provisional disposition of prohibition of disposal is land subject to a special long-term holding deduction under Article 18-3 (1) of the former Enforcement Rule of the Income Tax Act (Elimination by Ordinance of the Ministry of Finance and Economy of March 6, 191) (negative)

According to Article 23(2)2 of the Income Tax Act, Article 46-3 subparag. 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194 of Dec. 31, 190), and Article 18-3(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1848 of the Ministry of Finance and Economy of Mar. 6, 191), land category of which is no building is a site shall be excluded from special long-term holding deduction, but exceptionally, land category shall be excluded from the special long-term holding deduction, but where construction or use is prohibited or restricted as of the transfer date under the provisions of the Urban Planning Act, the Natural Parks Act, the Road Act, or other Acts and subordinate statutes after its acquisition, the special long-term holding deduction is not prohibited or restricted, but merely prohibits the disposal of land at the time of transfer.

Article 23(2)2 of the Income Tax Act; Article 46-3 subparag. 1 of the former Enforcement Decree of the Income Tax Act (defluence by Presidential Decree No. 13194, Dec. 31, 1990); Article 18-3(1) of the Enforcement Rule of the same Act (defluence by Ordinance of the Ministry of Finance and Economy No. 1848, Mar.

Plaintiff

Head of Si Tax Office

Seoul High Court Decision 92Gu1034 delivered on November 18, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

(1) With respect to the time of acquisition:

According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiff entered into a sales contract to purchase the land of this case with the non-party on September 21, 1978 and paid the remaining purchase price on June 30, 1982, and determined that the payment date is clear pursuant to Article 27 of the Income Tax Act and Article 53 (1) of the Enforcement Decree of the same Act as of June 30, 1982 shall be the time of acquisition to calculate the transfer margin of the land of this case. In light of the records and relevant Acts and subordinate statutes, the court below's findings of fact and determination are acceptable, and there is no error of law such as violation of the rules of evidence, incomplete deliberation, omission of judgment, and misapprehension of the legal principles as pointed out in the arguments. The decision of the national tax Tribunal cited in the arguments is related to the case where the date of settlement is unclear, and it cannot be said that it is proper to determine the time of acquisition in this case, and the above decision has no effect binding on the court, and it cannot be justified.

(2) As to the special long-term holding deduction:

According to Article 23(2)2 of the Income Tax Act, Article 46-3 subparag. 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13194 of Dec. 31, 190), and Article 18-3(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1848 of Mar. 6, 191), land category of which is no building is a site, in principle, shall be excluded from special long-term holding deduction, but exceptionally, is prohibited or restricted from construction and use as of the date of transfer, and thus, the grounds for prohibition or restriction shall be determined to grant a special long-term holding deduction if it occurs under the Urban Planning Act, the Natural Parks Act, the Road Act, or other Acts and subordinate statutes after the acquisition of the relevant land. Thus, even if the site at the time of transfer was subject to the disposition of prohibition of disposal, it cannot be said that the construction and use of the land subject to special long-term holding deduction is prohibited or restricted.

In the same purport, the court below is just in holding that the land of this case is not subject to the special long-term holding deduction even if the disposition of prohibition of disposal was made at the time of the transfer of the land of this case, and there is no error of law by misunderstanding legal principles as

(3) Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)