National High Court Decision 2008 Jeon0548 (O6, 16, 2008)

Whether land falling under a residential area among urban areas falls under non-business land

Until the land is acquired and transferred, it constitutes land for non-business in the urban area, and thus falls under the land for non-business, and interest loaned by the bank while acquiring the land is not deducted as necessary expenses.

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

Article 104-3 (Scope of Non-business Land)

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s imposition of capital gains tax of KRW 3,947,690 on January 10, 2008 against Plaintiff ○○○ on January 10, 2008 and the imposition of capital gains tax of KRW 26,135,390 on Plaintiff ○○○ shall be revoked, respectively.

1. Details of the disposition;

A. On June 25, 1996, according to Articles 12 and 13 of the former Urban Planning Act (amended by Act No. 6243, Jan. 28, 200; hereinafter the same), Daejeon Metropolitan City Mayor decided a single unit of ○○○○○○○○-dong, ○○○○-dong, 423 square meters (hereinafter referred to as the “instant land”), including ○○○○○○○○○○○ Urban Planning Zone, and completed a cadastral approval notice (Article 1996-7 of the Seoul Metropolitan City). However, on May 16, 2003, the Plaintiff Kim○○ acquired the instant land at KRW 120,000,000, which was calculated on February 23, 2004, the Plaintiffs transferred each of the instant land to the Defendant by applying the actual transaction price to the Plaintiff, the husband’s share of KRW 120,000,000.

"However, the defendant, however, deemed that the land of this case constitutes land for non-business use, calculated the transfer income tax again by applying 60% of the heavy tax rate, and then notified the plaintiff OOOOOOOOOOOOO of 207 capital gains tax of 3,947,690 capital gains tax of 2007, and the plaintiff 26,135,390 capital gains tax of 207 to the plaintiff OOOOOOO (hereinafter "the disposition of this case")" (the ground for recognition), "No dispute exists", "No dispute is raised, Gap 2, Gap 5, Gap 7, Eul 1, and Eul 1 to 6 evidence (including each number in cases where there are spot numbers), the purport of the whole pleadings, as well as the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

(1) Although the instant land does not constitute non-business land for the following reasons, it is unlawful that the Defendant imposed capital gains tax on deeming it as non-business land.

㈎ 이 사건 토지는 취득 당시 벼농사를 짓던 농지였고, 원고들 역시 매각할 때까지 영농 목적으로만 이용하였다.

㈏ 이 사건 토지가 포함된 지역은 도시개발예정지역으로 고시되어 토지의 사용이 금지되었고, 원고들은 그 금지 기간 동안 이 사건 토지를 소유하다가 양도하였으므로, 소득세법 제104조의 3 제2항, 소득세법시행령 제168조의 14 제1항 제1호에 따라 이 사건 토지는 비사업용토지에 해당하지 않는다.

㈐ 이 사건 토지가 포함된 지역은 1996년 도시개발 사업지구로 지정되었으나 2000. 1. 28. 도시개발법이 제정되면서 그 지정이 해제되었고, 그 후 관저4지구 도시개발사업조합이 결성되면서 2005년 다시 도시개발 사업지구로 지정되었으므로, 결국 원고들은 토지구획정리사업 구역지정이 해제된 후 이 사건 토지를 매수한 것이고, 따라서 이 사건 토지는 소득세법 제104조의 3 제2항, 소득세법시행령 제168조의 14 제1항 제3호, 소득세법시행규칙 제83조의 5 제1항 제8호의 규정에 따라 비사업용토지에 해당하지 않는다.

Luxembourg The Plaintiffs, when acquiring the instant land, took out a loan of KRW 95 million at the ○○ Dong branch of Han Bank, and borne interest on the instant loan until the sale of the instant land. Thus, the interest is unlawful to calculate the transfer income tax without deducting it, notwithstanding the cost incidental to the acquisition of the instant land.

(b) Related statutes;

Article 96 (Transfer Price)

Article 104 (Tax Rate of Transfer Income Tax)

Article 104-3 (Scope of Land for Non-business)

C. Determination

(i) Whether the land is non-business land

㈎소득세법 제104조의 3 제1항의 비사업용 토지 해당 여부

According to Article 104-3 (1) 1 (b) of the Income Tax Act and Article 168-6 (2) of the Enforcement Decree of the same Act, where the period of land ownership is not less than three years and less than five years, the land in this case is a farmland in an urban area under the National Land Planning and Utilization Act (hereinafter referred to as the "National Land Planning Act") during the period exceeding one year out of the three years immediately preceding the transfer date, and the period exceeding one year out of the three years immediately preceding the transfer date, and the period exceeding 20/10 of the ownership period of the land (c) and the land in the urban area under the same Act (hereinafter referred to as the "National Land Planning Act"), unless there are special circumstances, the land in this case constitutes a land for non-business use, evidence Nos. 6, evidence No. 2-1, and 2-1 of the same Act, and the purport of the entire pleadings are comprehensively taken into account. Thus, the land in this case can be acknowledged as a land category in the urban area until the plaintiffs acquired and transferred.

㈏ 소득세법 제104조의 3 제2항의 부득이한 사유 해당 여부

(a) According to Article 104-3(2) of the Income Tax Act, in applying the provisions of paragraph (1) of the same Article, in cases where the land falls under the non-business land due to the prohibition of use due to the provisions of law after its acquisition or other inevitable reasons prescribed by the Presidential Decree, it may not be deemed the non-business land as prescribed by the Presidential Decree. According to Article 168-14(1)1 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008; hereinafter the same) of the Income Tax Act, the land, the use of which is prohibited or restricted by the law after its acquisition, shall be deemed the land that does not fall under any of the subparagraphs of Article 104-3(1)

Although the land of this case was designated as an urban planning zone on June 25, 1996 under the provisions of Article 12 of the former Urban Planning Act, since the designation was already made before the acquisition of the land of this case, there is no room for applying the above exception provision.

According to Article 168-14 (1) 3 of the Enforcement Decree of the Income Tax Act, land which can be constructed on a unit of land in an urban development zone under the Act on Public Notification and Development is deemed land which does not fall under any of the subparagraphs of Article 104-3 (1) of the Income Tax Act and falls under non-business land under the same paragraph for a period as determined by the Ordinance of the Ministry of Finance and Economy in consideration of the legal restrictions due to public interest or inevitable reasons, the current status of land acquired, the reason for its use, etc., and the determination of whether it falls under the non-business land under the provisions of Article 104-3 (1) of the Income Tax Act shall be made. However, regardless of the fact that there is no evidence to acknowledge the designation of an urban development project under the provisions of Article 83-5 (1) 8 of the Enforcement Decree of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 15 of Apr. 29, 2008).

㈐ 소결

The land of this case constitutes land for non-business use.

Whether the interest is deducted or not

According to Article 97 (1) of the Income Tax Act, the necessary expenses to be deducted from the transfer value of a resident shall be the acquisition value that is the actual transaction value disbursed for the acquisition of assets falling under each subparagraph of Article 94 (1) (the proviso to subparagraph 1 (a)), where it is impossible to confirm the actual transaction value at the time of acquisition, such as the transaction example value, appraisal value or conversion value ( subparagraph 1 (b)), capital expenses as prescribed by the Presidential Decree ( subparagraph 3), transfer expenses, etc. prescribed by the Presidential Decree (Article 163 (1) of the Enforcement Decree of the Income Tax Act). According to Article 163 (1) of the Enforcement Decree of the Income Tax Act, the actual transaction value used for acquisition under the main sentence of Article 97 (1) 1 (a) of the Income Tax Act shall include the acquisition value calculated by applying mutatis mutandis Article 89 (1) (including the current value discount under Article 89 (2) 1, excluding the amount exceeding the market price under the unfair act and calculation), and the amount equivalent to the corresponding interest under subparagraph 1 shall not be included in the acquisition price.

Therefore, even if the plaintiffs received a loan from the bank for the purpose of paying the price and actually paid the interest on the loan, it is difficult to view that the interest is included in the actual transaction price required for the acquisition of the land of this case, or constitutes capital expenses or transfer expenses, etc., and thus, it cannot be deemed that there is any illegality in calculating the transfer income tax on the land of this case without deducting it as necessary

Fidelity disposition of this case is lawful, and the plaintiffs' assertion disputing this is without merit.

3. Conclusion

The plaintiffs' claims are dismissed in entirety because they are without merit.

3. Conclusion

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