The early appellate court 2015west 1505

Land of this case constitutes land for non-business use

It is difficult to view that profits and losses and responsibilities arising from the operation of the parking lot above the land of this case belong to the plaintiff who is the land owner. Rather, it is reasonable to deem that the plaintiff or CCC leased the land of this case to the parking lot use and received a fixed amount of rent regardless of whether business profits accrue. Thus, the land of this case constitutes non-business land

Article 104-3 of the Income Tax Act

2015Gudan56390 Revocation of Disposition of Imposing capital gains tax

AA

00.Si 00.00 00.22 Ga-ro 5

Head of Seodaemun Tax Office

Litigation performers 000

November 12, 2015

December 10, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 222,301,680 against the Plaintiff on December 1, 2014 is revoked.

1. Details of the disposition;

A. On March 19, 1990, the Plaintiff reported capital gains tax of KRW 314,404,050 on May 31, 2012, after transferring 00:00 Do 00-0 Do 1,053 Do 1,053 Do 20-72 Do 20-72 Do 189 m2 (hereinafter “instant land”).

B. On December 1, 2014, the Defendant issued a correction and notification of KRW 222,301,680, which calculated the acquisition price of the instant land as the conversion price to the Plaintiff (hereinafter “instant disposition”).

C. On February 27, 2015, the Plaintiff dissatisfied with the instant disposition and filed a request for a trial with the Tax Tribunal, but the said request was dismissed on May 28, 2015.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff leased the instant land to BB for the purpose of parking lot around December 2002, the Plaintiff used the instant land for the purpose of parking lot after 2002. The Plaintiff obtained permission for parking lot business in the name of CCC, but this is a common parking lot business for the purpose of distributing usage income. As such, the instant land is excluded from non-business land, and the provision on special deduction for long-term holding should be applied. Therefore, the instant disposition that excluded the application of the provision on special deduction for long-term holding on the premise that the instant land is non-business land is illegal

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) According to the relevant statutes, in order to constitute a land for a parking lot, which is subject to the special deduction for long-term holding, it should be the land owned by a person operating a parking lot operating business, and the ratio of the amount of income for one year to the value of the land used as an off-road parking lot under the Parking Lot

In addition, whether a landowner has run a parking lot business or not depends on whether the substance of the business, such as the profit and loss from the business directly belongs to the landowner, was made under the responsibility and calculation of the landowner.

2) In full view of the overall purport of arguments as to the instant case, the Plaintiff agreed to lease the instant land to CCC for the purpose of parking lots, and the monthly rent of KRW 1,60,000 on February 25, 2008, monthly rent of KRW 1,700,000 on February 1, 2010, monthly rent of KRW 2,000,000 on June 4, 201, and monthly rent of KRW 2,00,000 on June 2, 201 (the lessor of the contract dated February 25, 2008 is FFF), from around October 20, 200, KRW 30,000 on each of the instant land to October 1, 200, KRW 200 on each of the instant land, KRW 30,000 on each month, KRW 30,000 on each of the instant land, KRW 30,010,000 on each of the instant land.

In accordance with the above facts, it is difficult to view that profits and losses and responsibilities arising from the operation of the parking lot above the land of this case belong to the plaintiff who is the land owner. Rather, it is reasonable to view that the plaintiff or FF leased the land of this case for the use of the parking lot and received the fixed amount of money as the rent regardless of whether business profits accrue.

3) Therefore, the Plaintiff’s assertion on the premise that the instant land is excluded from the non-business land as land for parking lots is without merit, and the instant disposition that the Defendant regarded the instant land as the non-business land on the premise is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.