Suwon District Court 2008Guhap2953 ( August 18, 2009)

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 appeal is dismissed.

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

The decision of the first instance court is revoked. On November 9, 2007, the defendant made a decision to revoke a disposition of rejection of capital gains tax correction for the plaintiff on November 9, 2006 (reduction of KRW 118,557,040).

The reasons for the judgment of the first instance are reasonable, and therefore, it is cited as the reasons for the judgment of this case in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of

For the grounds of appeal of this case, the plaintiff operated the parking lot of this case under the responsibility and accounting of the plaintiff, such as the payment of value-added tax and the comprehensive income tax as the parking lot operator, after reporting the establishment of the parking lot of this case with the plaintiff's funds, and entrusting the operation of the parking lot of this case to the stone return, etc. who is the parking manager, and receiving a monthly amount of money in return for the monthly payment. Thus, the land of this case does not constitute non-business land under the Income Tax Act, and the plaintiff did not have any concept of "non-business land" at the time of the establishment of the parking lot of this case, and therefore, it is unlawful to consider

However, according to the relevant provisions of the Income Tax Act that the Plaintiff had enforced at the time of transferring the instant land, the standard market price is applied only when the owner directly operates the parking lot operation floor. Whether the profit or loss accrued from the business belongs to the owner of the land or not depends on whether the substance of the business, such as the profit or loss accruing from the business, directly belongs to the owner of the land, was carried out under the responsibility of the owner of the land. The formal reasons, such as who installed the parking lot in his capital, whose name the business is registered, and whose name the taxes on the income accrued during the business period, are paid, are only the incidental and indirect factors to determine who is the actual business owner.

However, in the case of the Plaintiff, it is reasonable to view that the Plaintiff continued to reside overseas during the period of the instant parking lot operation and comprehensively entrust the management and operation of the parking lot to stone exchange, etc., the trustee is responsible for any accidents that occur in the parking lot with the deposit money and a certain monthly amount, and at the expiration of the contract period, the trustee concludes a "vehicle Operation Contract, etc." with the contents similar to the typical lease contract, such as giving up the right to all of the facilities in the parking lot, and the stone exchange, etc. continued to operate the parking lot according to the agreement (Evidence No. 22, etc.). It is difficult to view that the operation of the parking lot in such form as above belongs to the Plaintiff, who is the land owner. Rather, it is close to the case where the Plaintiff received the fixed amount of rent regardless of whether the operating profit accrued. In addition, since the transfer income tax on the transfer of the instant land should be based on the law at the time of transfer, the tax law at the time of the construction of the instant parking lot did not change the criteria for imposition of transfer income tax.

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.