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쟁점토지의 사업인정 고시일이 「택지개발촉진법」에 의한 택지개발예정지구 지정, 고시일(2006.11.23.)인지, 「혁신도시특별법」에 의한 혁신도시개발예정지구 지정, 고시일(2007.4.16.)인지 여부(기각)
조세심판원 조세심판 | 2009-11-18 | 조심2009서1474 | 양도
[Case Number]

Seocho 209west 1474 ( November 19, 2009)

[Items]

Transfer

[Types of Decision]

Dismissal

[Summary of Decision]

Since the designation and public notice of the proposed innovation city development district was publicly notified, the detailed list of the incorporated land, etc. was followed by the implementation of the project, such as the approval of the development plan at the time of transfer, it is reasonable to deem the public notice of the project approval is the designation and

[Related Acts]

Article 104-3 of the Income Tax Act Scope of Land for Non-business

【Disposition】

I dismiss the appeal.

【Reasoning】

1. Summary of disposition;

A. On December 6, 2007, the claimant filed a report and paid capital gains tax of KRW 60,449,690 on February 29, 2008, by applying the tax rate applicable to non-business land (60%) after selling OOOO OO OO OO 2,976 square meters (hereinafter “sub-owned land”) through consultation with OO OO.

B. On October 20, 2008, the applicant filed an application for rectification of KRW 45,029,220 of the capital gains tax on October 20, 2008, deeming that the pertinent land does not fall under the non-business land where the designation date of a planned housing site development area is deemed as the public announcement date of business authorization under Article 22(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects. However, the disposition agency notified the applicant of his/her refusal to file an application for rectification on December 22, 2008, deeming that the pertinent land does not fall under the non-business land under Article 104-3(2) of the Income Tax

C. The claimant appealed and filed an appeal on March 4, 2009.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

The key land is contradictory to determine whether it falls under the non-business land under Article 168-14 (3) 3 of the Enforcement Decree of the Income Tax Act depending on whether the land is designated as a planned housing site development district under the Housing Site Development Promotion Act and an innovation city development district under the Special Act on the Construction and Support of Innovation Cities Following Relocation of Public Agencies (hereinafter referred to as the "Special Act on Innovation Cities") for the construction of an innovation city in North Korea, and the designation of the key land as a planned housing site development district after designating the planned housing site development district is merely the formal procedure supplementing the designation of the originally planned housing site development district for the construction of the innovation city in North Korea, and the designation and announcement date of the planned housing site development district is limited from the date of designation and announcement of the planned housing site development district, and the key land is excluded from non-business land.

(b) Opinions of disposition agencies;

Of the districts designated and publicly announced as the planned area for housing site development pursuant to the Housing Site Development Promotion Act, only the districts designated and publicly announced as the planned area for innovation city development after deliberation by the Innovation City Committee under Article 7 of the Special Act on Innovation City Development, shall be deemed to be the planned area for innovation city development, and this is not the same as the planned area for housing site development, and there is no reason to regard the expropriation of the controversial land as the expropriation under the Housing Site Development Promotion Act applied under the proviso of Article 51 (2) of the same Act, on the ground that the answer and key land by the Ministry of Land, Transport and Maritime Affairs, which are the fact that the land was expropriated under Article 15 of the same Act, and the key land is not the expropriation under the Housing Site Development Promotion Act which is applied under the proviso of Article 51 (2) of the same Act, and the designation and public notification date of the planned area for innovation city development under Article 168-14 (3) 3

3. Hearing and determination

A. Key issue

Whether the date of public notice of project approval is the date of designation and public notice of the planned area for housing site development ( November 23, 2006) under the Housing Site Development Promotion Act and whether the designation and public notice date of the planned area for innovation city development ( April 16, 2007) under the Special Act on Innovation City.

B. Relevant statutes

(1) In applying the provisions of paragraph (2) of Article 104-3 of the Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007), the scope of the non-business land may not be regarded as the non-business land under the conditions as prescribed by the Presidential Decree, in case where the use of the non-business land is prohibited by the provisions of law after the acquisition of the land or any other inevitable reason

(1) Pursuant to the provisions of Article 104-3 (2) of the Act, the land falling under any of the following subparagraphs shall be deemed land not falling under any of the subparagraphs of Article 104-3 (1) of the Act during the period prescribed in any of the relevant subparagraphs, and shall be determined whether it falls under the non-business land (hereinafter referred to as "non-business land") under the provisions of the same paragraph:

1. After acquiring the land, the use of which is prohibited or restricted pursuant to Acts and subordinate statutes: A period of prohibition or restriction;

(3) The land falling under any of the following subparagraphs pursuant to the provisions of Article 104-3 (2) of the Act shall not be regarded as the nonbusiness land:

3. Land which is purchased by consultation or expropriated pursuant to the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor and other Acts, and of which business authorization is published before December 31, 2006;

Article 3 of the Housing Site Development Promotion Act (amended by Act No. 8384 of Apr. 20, 2007) ① The Minister of Construction and Transportation (where the area of the planned area to be designated is less than 200,000 square meters and the area of the planned area to be designated is less than 200,000 square meters, it refers to the Special Metropolitan City Mayor, Metropolitan City Mayor, or Do governor; hereinafter the same shall apply) and Articles 2 through (4), 3-2 (1), 3-3 (1), 4, 7 (1) and (3), 8, 9 (1), (3) and (4), 11 (1) and (2), 18 (1), and 20 (4), 23, 23-2, 24 (1) and 27) may designate an area necessary for collective development of the planned area as a planned area in accordance with the supply and demand plan for a housing site under Article 7 (1) of the Housing Act.

(2) The Minister of Construction and Transportation shall, when he/she intends to designate a planned area (including an alteration of a planned area designated; hereinafter the same shall apply) under paragraph (1), consult with the heads of related central administrative agencies in advance, hear the opinions of the heads of relevant local governments, and then undergo deliberation of the Housing Policy Deliberative Committee under Article 84 of the Housing Act (where the area of a planned area to be designated or altered is less than 200,000 square meters and it does not extend over two or more Special Metropolitan Cities, Metropolitan Cities or Dos, referring to the City/Do Housing Policy Deliberative Committee under Article 85

Article 8 (Approval, etc. of Housing Site Development Plan) (1) When a project implementer intends to implement a housing site development project, he/she shall prepare a housing site development plan (hereinafter referred to as "development plan") and obtain approval therefor from the Minister of Construction and Transportation.

(2) The Minister of Construction and Transportation shall, when he approves a development plan under paragraph (1), notify the public thereof, send the details thereof to the head of the competent Si/Gun for public perusal.

Article 12 (Land Expropriation (amended by Act No. 8384 of Apr. 20, 2007) (1) Where a project implementer deems it necessary to implement a housing site development project in a prearranged area, he/she may expropriate or use (hereinafter referred to as "Expropriation") land, goods or rights prescribed in Article 3 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (hereinafter referred to as "land

(2) When a development plan is approved and announced under Article 8, the project approval and the announcement of the project approval under Articles 20 (1) and 22 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor shall be deemed to have been made, and an application for adjudication shall, notwithstanding Articles 23 (1) and 28 (1) of the same Act, be made within the project implementation period as determined by

Article 12 (Land Expropriation (the Act amended by Act No. 8384, Apr. 20, 2007) (1) A project operator (referring to a public project operator where a project is jointly implemented pursuant to Article 7 (1) 4) may expropriate or use (hereinafter referred to as "Expropriation") land, goods, or rights (hereinafter referred to as "land, etc.") prescribed in Article 3 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects when it is necessary to implement a housing site development project within a planned area.

(2) When a prearranged area is designated and publicly notified pursuant to Article 3, a project approval and public announcement thereof shall be deemed granted and made pursuant to Articles 20 (1) and 22 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and an application for adjudication shall be filed within the project implementation period set forth in an implementation plan pursuant to Article 9, notwithstanding Articles 23 (1) and 28 (1) of the same Act.

Article 7 of the Special Act on the Construction and Support of Innovation Cities Following Relocation of Public Agencies (amended by Act No. 8656, Oct. 17, 2007; Act No. 910, Jan. 18, 2008) (1) Where the Minister of Construction and Transportation intends to designate a planned innovation city development district pursuant to Article 6, he/she may designate a planned innovation city development district through consultation with the head of the competent Mayor/Do Governor and the head of the competent Si/Gun/Gu and consultation with the head of the relevant central administrative agency and deliberation by the Innovation City Committee (hereinafter referred to as the "Innocent City Committee") under Article 30. The same shall apply to the modification (excluding the modification of minor matters prescribed by Presidential Decree) of the planned innovation city development district.

(2) The Minister of Construction and Transportation shall, when he intends to designate or alter a planned innovation city development district under paragraph (1), hear the opinions of residents and relevant experts under the conditions as prescribed by the Presidential Decree: Provided, That the same shall not apply to the alteration of minor matters prescribed

(3) The Minister of Construction and Transportation shall, when he/she designates or modifies a planned innovation city development district pursuant to paragraph (1), publish the following matters in the Official Gazette, and send copies of the relevant documents to the Governor of the relevant Special Self-Governing Province or the head of the relevant Si/Gun/Gu. In such cases, the Governor of the relevant Special Self-Governing Province or

1. The name, purpose and operator of the innovation urban development project;

2. Location and area of the planned innovation city development district;

3. Details of the land to be expropriated or used.

4. Topographical drawings under Article 8 (2) of the Framework Act on the Regulation of Land Use.

Article 15 (Expropriation and Use of Excellent Land, etc.) (1) When it is necessary for the implementation of an innovation city development project within a planned innovation city development district, the project implementer may expropriate or use (hereinafter referred to as "Expropriation, etc.") land, goods, or rights (hereinafter referred to as "land, etc.") under Article 3 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects.

(2) When a district for planned development of an innovation city is designated and publicly notified under Article 7 (1) and (3), the project shall be deemed approved and the public notification thereof shall be deemed made under Articles 20 (1) and 22 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects.

Article 51 (Designation Overlapping with Development Project Zones under other Acts) (1) The Minister of Construction and Transportation may designate development project zones under other Acts, such as housing site development areas under the Housing Site Development Promotion Act (hereafter referred to as "previous project zones" in this Article) in overlapping with the development project zones under other Acts.

(2) Where an innovation city development project is implemented by making overlapping designation under paragraph (1), the procedures for a development project under other Acts and the procedures for an innovation city development project under this Act shall be followed, notwithstanding the provisions of Article 3: Provided, That the expropriation, etc. of land, etc. within the previous project zone, which is deemed to have been approved and announced pursuant to the provisions of Articles 20 (1) and 22 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects pursuant to other Acts, shall be governed by other Acts, notwithstanding the provisions of Article 15. In such cases, when the designation of a district for planned development of an innovation city is publicly announced pursuant to the provisions of Article 7 (3), the detailed list of

Article 1 of the Addenda (Enforcement Date) (Law No. 8238, January 11, 2007) This Act shall enter into force on the date one month has elapsed after its promulgation.

Article 2 (Special Cases concerning Prearranged Areas for Housing Site Development) (1) The Minister of Construction and Transportation may, upon the enforcement of this Act, designate and announce a district necessary to be developed into an innovation city among the districts designated as a planned area for housing site development under Article 3 of the Special Act on Balanced National Development at the time of the enforcement of this Act, as a planned area for innovation city development pursuant to Article 7 (3) after deliberation by the Innovation City Committee under Article 30. In such cases, the provisions of Articles 6 (2) and (3) and 7 (1) and (2) shall not apply.

(2) When a project is designated and publicly notified as a planned innovation city development district pursuant to paragraph (1), the project is deemed approved and the public notification thereof is deemed made pursuant to Article 15 (2).

(v) Article 20 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 7835, Dec. 30, 2005) (1) The project operator shall obtain the approval of the Minister of Construction and Transportation under the conditions as prescribed by the Presidential Decree when he intends to expropriate or use land, etc. under the provisions of Article 19

Article 22 (Public Notice of Approval of Facilities Project) (1) When project approval is granted under Article 20, the Minister of Construction and Transportation shall notify the project operator, landowner and person concerned, related Mayors/Do Governors of the purport thereof without delay, and publicly notify the project operator's name or name, type of project, project area, and detailed items of land to be expropriated

(3) Project approval shall take effect from the date of public announcement under paragraph (1).

C. Facts and determination

(1) On December 6, 2007, the claimant transferred 163,680,000 won to OO on May 10, 208. On February 29, 2008, the claimant reported and paid 60,449,690 won of capital gains tax by applying the tax rate of 60% for non-business land (60%) on February 29, 2008. The date of designation of planned housing site development area (1.23, 2006) is the date of public announcement of project approval on December 31, 2006, the key land is the land excluded from non-business under Article 168-14(3)3 of the Enforcement Decree of the Income Tax Act, and the tax amount is calculated as KRW 15,420,470 by applying the general tax rate (36%) and the disposition agency rejected the claim for correction.

Article 168-14 (3) of the Enforcement Decree of the Luxembourg, enumerated the cases in which the land for non-business is not deemed the land for non-business use, and subparagraph 3 of the same Article stipulates "land purchased by consultation or expropriated pursuant to the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor and other Acts and subordinate statutes before December 31, 2006", and the issue of whether the land is the land at issue.

㈎ 전북 전주·완주 혁신도시 건설을 위한 택지개발 예정지구 지정·고시(OOOOO OO OOOOOOOOOO, 2006.11.23.)는 「택지개발촉진법」 제3조의 규정에 따라 혁신도시 건설을 위한 택지개발예정지구를 지정하여 고시한 것으로서 택지개발예정지구 및 사업시행자 지정 내역은 <표1>과 같다.

㈏ OO OOOOO OOOOOOOOOO 및 사업시행자 지정·고시(OOOOO OO OOOOOOOOOO, OOOOOOOOOO)는 「혁신도시특별법」 제6조, 부칙 제2조 및 제10조의 규정에 따라 혁신도시개발예정지구 및 사업시행자를 지정하여 고시한 것으로서 그 내용은 다음과 같다.

OOOOOOOOOOOOOOOOOOOOO

㈐ OO OOOOO OOOOOOOOOO와 관련하여 위 ㈎와 ㈏의 2개의 고시 중 어느 고시가 효력이 있는지 살펴본다.

1) Articles 20 and 22 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Interest Compensation Act”) stipulate that the approval of a project shall be effective upon approval of the Minister of Construction and Transportation. The project operator, landowner and related person, the related Mayor/Do Governor shall be notified, and the project operator’s name, type of project, project area, and details of land to be expropriated or used shall take effect from the date of announcement in the Official

2) 위 ㈎의 「택지개발촉진법」에 의한 고시는 2006.11.23. 지구명·위치·면적 및 시행자가 고시되었으나, 편입토지 등에 대한 세목고시가 되지 아니한 반면에, 위 ㈏의「혁신도시특별법」에 의한 고시는 2007.4.16. 혁신도시개발사업의 명칭·목적·시행자·위치·면적 및 편입토지 등에 대한 세목이 고시되었다.

3) Article 12(2) of the Housing Site Development Promotion Act provides that the date of designation and public notice of a planned housing site development district shall be deemed the date of project approval and public notice of project approval under Articles 20 and 22 of the Public Interest Compensation Act. Article 15 of the Special Act on Innovation City designated the date of designation and public notice of a planned housing site development district as the date of the above public notice of project approval under Article 15 of the Special Act on Innovation City was implemented under the Act as the time the Special Act on Innovation City was enacted and implemented. Article 51 of the Act and Article 2 of the Addenda allow the designation of a planned housing site development district in overlap with a development project district under other Acts, such as a district designated as a planned housing site development district under the Housing Site Development Promotion Act. The designation and public notice of a planned housing site development district shall be made under the procedures of other Acts and the Special Act on Innovation City, so that the designation and public notice of a planned housing site development district shall be made without the effect of the designation and public notice of a planned housing site development district.

㈑ 위 사실관계 등을 종합하여 보면, 2006.11.23. 「택지개발촉진법」에 따른 택지개발예정지구 지정·고시는 편입토지 등에 대한 세목이 고시되지 아니하였음에 반해, 2007.4.16. 「혁신도시특별법」에 의한 혁신도시개발예정지구 지정·고시는 편입 토지 등에 대한 세목이 고시되었고, 이는 양도 당시의 같은 법의 규정에 의하여 개발계획의 승인 등 사업의 시행으로 이어졌으므로, 쟁점토지의 사업인정고시일은 혁신도시개발예정지구 지정·고시일인 2007.4.16.로 봄이 타당하다고 판단된다.

Article 22(1) of the Income Tax Act provides that the disposition agency shall be deemed to be the date of the approval of the project of the land at issue on April 16, 2007 and the land at issue is not the land excluded from the non-business, and thus, it is deemed that there is no error in the original disposition rejecting the request for correction of

4. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65 (1) 2 of the Framework Act on National Taxes because the petition for adjudication has no merit as a result of the review.

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