Seoul Administrative Court-2017-Gu Group-5640 ( March 29, 2017)

Cho High-2015-Seoul Government-505 (2016.05.02)

Criteria for determining whether a "land not used for business" under Article 83-5 (1) 12 of the Enforcement Rule of the Income Tax Act is "land not used for a legitimate reason"

In light of the current status of land and the reason for its use or the situation of its use, it shall be based on whether the use according to the purpose is restricted, and whether the Plaintiff has made efforts to develop the land in this case shall be deemed one of the flexible requisitions.

Article 95 of the Income Tax Act (Transfer Income Amount)

2017Nu42752 Revocation of disposition of imposing capital gains tax

AA

BB Director of the Tax Office

Seoul Administrative Court Decision 2016Gudan56540 Decided March 29, 2017

September 13, 2017

September 27, 2017

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The transfer income tax reverted to the Plaintiff in July 31, 2015 by the Defendant against the Plaintiff on July 31, 2015

273,130,010 won shall be revoked.

1. Quotation, etc. of judgment in the first instance;

The court's reasoning for this part is that "electronics" in the fourth below of the judgment of the court of first instance, "Paragraph 1 Item 1 Item A" in the fifth 4th st st st st 5th st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st

2. Supplementary judgment

A. The plaintiff's assertion

The Plaintiff’s subjective intent is merely the Plaintiff’s subjective intent to either construct a building on the instant land or make efforts to implement the authorization and permission procedures for changing the form and quality of the land. As such, Article 168-14(1)4 of the former Enforcement Decree of the Income Tax Act and Article 83-5(1)12 of the former Enforcement Rule of the Income Tax Act do not stipulate the landowner’s subjective intent as a taxation requirement, it goes against the principle of strict interpretation derived from the principle of no taxation without law to determine whether the instant land constitutes non-business land.

B. Determination

As long as Article 168-14 (1) 4 of the former Enforcement Decree of the Income Tax Act provides that "land falling under extenuating circumstances prescribed by Ordinance of the Ministry of Strategy and Finance, taking into account the legal restrictions due to restructuring or inevitable reasons of the company, the current status of land, grounds for acquisition or utilization status, etc.," it is reasonable to determine whether "land not used for business due to justifiable reasons" is "land not used for business" under Article 83-5 (1) 12 of the former Enforcement Rule of the Income Tax Act, taking into account the current status, reasons for acquisition or use status, etc. of the land, it is reasonable to determine whether its use

However, the issue of whether the Plaintiff made efforts for development activities on the instant land is one of the precious requisitions to determine the grounds for the Plaintiff’s acquisition of the instant land. Therefore, considering the fact that the Plaintiff did not make efforts to construct a building or change the form and quality of the instant land, it cannot be deemed that the determination of whether the instant land constitutes a non-business land in question violates the principle of strict interpretation derived from the principle of no taxation without law by taking the subjective circumstance not prescribed in the statutes as a taxation requirement. The Plaintiff’s assertion is without merit

3. Conclusion

Therefore, the judgment of the first instance is just, and the plaintiff's appeal is dismissed as it is without merit.