Land, the use of which is prohibited or restricted pursuant to statutes means land, the use of which is specially restricted beyond the scope of ordinary restrictions depending on the use of land.

Even if development activities are restricted, it cannot be deemed that the use of forest land, i.e., forest land, etc. is restricted, and in particular, it is difficult to deem that there was a special restriction on use since the Plaintiff did not appear to have a plan to develop the instant land, and it did not appear that there was a plan to develop the instant land.

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

Seoul Administrative Court 2018Guhap5104

u*

*The Director of the Tax Office

October 18, 2018

November 22, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's rejection disposition of correction of KRW 734,840,100 against the plaintiff on December 22, 2016 is revoked.

1. Details of the disposition;

A. The plaintiff * Ischeon-si* on November 1, 1982 * Dongsan* forest**,50 square meters (hereinafter referred to as "the land in this case")

* The above land was transferred to*** July 201*. * The above land was transferred to KRW 200 million* the above case*.

The former Income Tax Act (amended by Act No. 14389, Dec. 20, 2016; hereinafter referred to as "Income Tax").

Article 95 (1) of the Income Tax Act is applicable to land for non-business under Article 104-3 of the Act.

Transfer Income Tax*,**,754,740 won under the premise that it is not subject to the special deduction for long-term holding under the Act

The payment was made.

B. The plaintiff * October 1, 201* The income tax different from the land category entered in the actual record of the land of this case to the defendant.

Since it is used as a site for stock farm provided for in Article 104-3 (1) 3 (a) of the Act, it is used for non-business

Transfer Income Tax***,840,100 won under the premise that the land is excluded from the special deduction for long-term holding.

Although the request for reimbursement was made by the Defendant, the Defendant made a disposition to refuse the above request for correction against the Plaintiff on 201*.26. (hereinafter referred to as the “instant disposition”).

C. On July 13, 201* by filing an objection, the Plaintiff filed a request for a trial with the Tax Tribunal on July 13, 201

However, 201**.3.3.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 3 and 6 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

For the following reasons, the instant land does not constitute non-business land under the Income Tax Act.

The instant disposition is unlawful on a different premise.

1) The instant land was owned by the Plaintiff prior to the acquisition on November 1, 1999** KRW 19*

Gohap operated a stock farm on July 31, 197* with permission to create grassland from Leecheon-si, and on March 29, 199** the land of this case was cancelled on March 29, 199*. In addition, the Plaintiff engaged in livestock farming business after its business registration, and the size of the land of this case is more than 10 mar tar raised by the Plaintiff less than 5 hectares (50,000 square meters). Thus, it constitutes a stock farm area excluded from the land for non-business use pursuant to Article 104-3 (1) 3 (a) of the Income Tax Act, etc. based on the standard area.

2) After the Plaintiff acquired the instant land, the National Land Planning and Utilization Act relating to the said land

Land for stock farm, the original use of which is in accordance with the percentage, the Act on the Management and Use of Livestock Excreta, etc.

Since it was difficult to use it, the relevant period of time is discussed in accordance with Article 104-3 (2) of the Income Tax Act.

be excluded from the period to be considered as such, and the Plaintiff is subject to the foregoing limitation of use.

Land could not be used as forest land.

3) The Municipal Ordinance of the Leecheon-si Urban Planning was enacted on June 23, 2003 and the Enforcement Rule of the Municipal Ordinance of the Leecheon-si Urban Planning.

This case’s land was enacted on March 22, 2004, and the development activities were completely performed regardless of its land category.

However, during the above period, it does not constitute non-business land.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) Gyeonggi Echeon-gun*** Inland**** *26,645 square meters of forest*26,645 square meters was divided into the instant land on June 9, 1982 and Echeon-si**** * 7,140 square meters of forest 25-1 forest * Risan 25-1 forest 7,140 square meters.

2) On July 31, 1972, the head of Leecheon-gun shall grant permission to create grassland of 5 hectares (50,000 square meters) on the instant land.

On March 29, 1993, the designation of the grassland district for the instant land was revoked. On the other hand, the original district was revoked.

on September 19, 1978, business registration was made *** farm in the trade name of the land in this case; and

On December 31, 1994, it was closed.

3) Restrictions on the instant land are as follows.

[Reasons for Recognition] Facts without dispute, Gap evidence 2, 3, Eul evidence 1, 3, and 5, the whole pleadings

Purport

D. Determination

1) Determination on the first argument (whether it constitutes a land for stock farm)

A) Contents of the relevant provisions

Article 104-3 (1) of the Income Tax Act refers to land for non-business use during the period of owning the relevant land.

The term "land falling under any of the following subparagraphs" means the land for the period prescribed by Presidential Decree:

The provisions stipulate that "the land for stock farm owned by a person who runs a livestock farming business" in subparagraph 3 (a) above the standard area of the land for stock farm as prescribed by Presidential Decree or falling under the urban area (excluding any area prescribed by Presidential Decree) in the Special Metropolitan City, Metropolitan City, Special Self-Governing City, Special Self-Governing Province or Si area (excluding any area incorporated into an urban area)." In applying paragraph (2), where the land falls under any subparagraph of paragraph (1) due to the prohibition of the use of the land by law after the acquisition thereof or other inevitable reasons prescribed by Presidential Decree, it may not be deemed the land for non-business use, as prescribed by Presidential Decree.

In addition, Article 168-6 of the Enforcement Decree of the Income Tax Act Article 104-3 (1) other than each subparagraph of the Act.

period prescribed by Presidential Decree means any of the following periods:

prescribed in subparagraph 1, if the ownership period of the land is not less than five years, all of the following items:

Article 168-7 of the Act provides that "the period exceeding two years in the five years immediately preceding the date of transfer", "the period exceeding one year in the three years immediately preceding the date of transfer", "the period exceeding one year in the three years preceding the date of transfer", and "the period exceeding 40/100 of the period of possession of land", and Article 168-7 of the Act provides that "the determination of farmland, forest land, site for stock farm and other land shall be based on the actual status except as otherwise provided in this Decree: Provided, That where the actual status is unclear, the determination of farmland, land for stock farm and other land shall be based on the registration status in the public register, and Article 168-10 (1) 3 of the Act provides that "the land for stock farm and its incidental facilities, grassland and fodder", and Paragraph (3) provides that "the area of land for stock farm according to attached Table 104-3 (1) 3 (a) of the Act and the area of livestock for stock farm shall be determined by applying the standard area of 10.

B) Determination

(i) As seen above, in order to constitute a land for non-business use, if the period of ownership of the land is five years or more, the period exceeding two years in the five years immediately preceding the date of the transfer, the period exceeding one year in the three years immediately preceding the date of the transfer, and the period exceeding one year in the three years immediately preceding the date of the transfer, and

If a person who runs a livestock farming business for a period corresponding to all excess periods owns the land for a stock farm;

or restrictions on green areas and development of land for stock farming prescribed by Presidential Decree;

It must be located in the urban area of the Si area other than the zone (Article 104-3 (1) 3 of the Income Tax Act).

(a) Article 168-6 of the Enforcement Decree of the Income Tax Act. In addition, in determining a site for stock farms, the actual status.

corporation, and if the actual status is not clear, it shall be based on the registration status in the public account book.

(Enforcement Decree of the Income Tax Act Article 168-7)

However, in relation to the current status of the land of this case, the plaintiff registered the business with the trade name of '** farm' or was granted permission for the creation of grassland, but there is no global income tax paid while running the livestock industry, and even in the photograph taken around 1988, the entire land of this case does not seem to have been used as a site for the farm, and there is no objective data related to the raising, so it is unclear whether the land of this case was actually used as a site for the farm after the plaintiff acquired the plaintiff's ownership.

In addition, the land of this case was not a site for the past five years prior to the date of transfer, and the current status for the past three years prior to the date of transfer, which exceeds one year prior to the date of transfer, and does not fall under the site for the past three years exceeding the period corresponding to 40/100 of the period of land ownership, the land does not meet the requirements for the site for the past. Even if the Plaintiff used the land for the past for a period after the acquisition of the land of this case, at least the Plaintiff’

Since the land of this case cannot be deemed to have been used as a site for a stock farm after December 31, 1994, the period used as a site for a stock farm does not exceed 60/100 of the period during which the Plaintiff owns the land, and thus, the requirements cannot be satisfied.

Furthermore, even on the area, one grassland for a stock farm in the case of a milk farm business.

The area is 0.5 hectares (Article 168-10(3)1 attached Table 1-3 of the Enforcement Decree of the Income Tax Act), and the area of the instant land is 49,505 square meters, and if the Plaintiff raises milk less than 10 hectares, 5 hectares.

(50,000 square meters) The basic area of livestock farming business does not meet the above requirements. Since the Plaintiff did not submit objective data on the calculation of the number of livestock heads of milk, etc. while running the livestock business, it is difficult to deem that the above requirements also satisfied.

Therefore, the plaintiff's assertion that the land of this case constitutes a stock farm site is without merit.

The Plaintiff acquired the instant land in order to run a livestock industry, not for speculation purposes, in accordance with the government’s policy on the promotion of dairy business, and thereafter, a dairy farming business has disappeared, making it impossible for the head of Leecheon-gun to run a livestock industry by cancelling permission for the development of grassland. The Plaintiff asserted to the effect that there is a justifiable ground for failing to meet the above-term requirements, as it was impossible for Leecheon-si to transfer the instant land due to inevitable circumstances, such as seeking to construct crematoriums on the instant land. However, even though the Plaintiff intended to utilize the instant land as a stock farm site, there is no evidence to acknowledge the existence of justifiable grounds, such as the Plaintiff’s cancellation of the instant land from the grassland zone. Therefore,

2) Judgment on the second argument (whether to restrict under the relevant laws and regulations)

A) Article 104-3(2) of the Income Tax Act, and Article 168-14(1)1 of the Enforcement Decree of the Income Tax Act

After acquiring land, "land, the use of which is prohibited or restricted by law," is considered not to be non-business land for a period of time when the use is prohibited or restricted.

On the other hand, "land, the use of which is prohibited or restricted pursuant to the above law" means land, the use of which is specially restricted beyond the ordinary limit according to the use of land.

Here, whether “the use of land is specially restricted beyond the ordinary scope of restriction according to the use of the land” is based on the principle of limitation on the original use of the land. However, the acquisition purpose of the land, the actual use status, the possibility of changing the original use thereof, etc. should also be determined individually (see, e.g., Supreme Court Decisions 2011Du1425, Oct. 31, 2013; 2014Du7886, Jul. 14, 2016).

B) The land of this case is natural according to the National Land Planning and Utilization Act, etc.

According to the above facts, the area subject to restriction on raising livestock under the Act on the Management and Use of Livestock Excreta, the nature conservation zone under the Seoul Metropolitan Area Readjustment Planning Act, the area subject to restriction on the installation of discharge facilities under the Water Environment Conservation Act, the area subject to restriction on the installation of Han River landfill facilities under the Act on the Improvement of Water Quality and Support for Residents of the Han River Basin, the area subject to restriction on the installation of discharge facilities under the Framework Act on Environmental Policy, and the area subject to restriction on the preservation of water quality under the Framework Act on Environmental Policy. Accordingly, the land in this case is subject to restriction on the building-to-land ratio and the floor area ratio under Article 76(1) of the National Land Planning and Utilization Act, Articles 8(1) and 85 of the Enforcement Decree of the National Land Planning and Utilization Act (natural green belt area), the construction of housing sites, schools, etc. is restricted under Article 9 of the Seoul Metropolitan Area Readjustment Planning Act, Article 33 of the Water Environment Conservation Act, etc., and the installation of discharge facilities under Article 15-4 of the Act.

C) In the first place, the land of this case is prohibited from being used in accordance with the laws and regulations as a site for stock farms; or

In regard to whether land is limited land, as seen earlier, the land of this case is lost.

It seems that it was used as a site for stock farm or met the requirements as a site for stock farm under the Income Tax Act.

In addition, it is difficult to obtain the land of this case for a certain period after the Plaintiff acquired the land of this case.

Even if used, at least after December 31, 1994 when the Plaintiff’s business registration was discontinued, the instant land cannot be deemed to have been used as a site for a stock farm. Rather, the Plaintiff appears to have intended to sell the instant land as a result of the construction of crematorium around 2012. The restriction on the use of the instant land as a site for a stock farm appears to have occurred on March 9, 2012 because it was designated as a zone subject to livestock breeding restriction pursuant to Article 8(1) of the Act on the Management and Use of Livestock Excreta on March 9, 2012. Thus, even if there was a restriction on livestock raising due to such restriction, it is difficult to view that the current status of the instant land was a stock farm site or there is a possibility of changing it into a stock farm site, and thus, it cannot be viewed as a special restriction on

Next, as regards whether restrictions on use of forest land as forest for public use on the public register, forest land, bamboo thicket land, rocky land, gravelly land, sandy land, wetlands, yellow land, etc. which form a forest and field as well as a field of forest;

such land (Article 58 subparagraph 5 of the Enforcement Decree of the Act on the Establishment, Management, etc. of Spatial Data) as above

Restricted matters are limited to the construction, raising of livestock, etc. in the instant land.

Only on the sole basis, there is a special limitation on the land in this case’s use as forest land.

It is difficult to see that there was a plan to construct a building, etc. on the Gu or the instant land or the surrounding soil.

There is no possibility to modify the land of this case due to construction, etc.

Therefore, this part of the plaintiff's assertion is without merit.

3) Determination as to the third argument (whether to restrict under the municipal ordinance)

A) Article 104-3(2) of the Income Tax Act, and Article 168-14(1)1 of the Enforcement Decree of the Income Tax Act

Article 56 (1) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 21669, Aug. 5, 2009; hereinafter referred to as the "National Land Planning Act") provides that "land, the use of which is prohibited or restricted under the Acts and subordinate statutes after acquiring the land, shall not fall under the non-business land for a limited period of time, and Article 56 (1) of the former Enforcement Decree of the National Land Planning and Utilization Act provides that "the criteria for permission for development activities under Article 58 (3) of the Act shall be as specified in attached Table 1", and subparagraph 1 (a) (3) of attached Table 1 provides that "in the case of changing the form and quality of the land or collecting soil and rocks, it shall meet the criteria prescribed by the urban planning ordinance (referring to the urban planning ordinance of the Special Metropolitan City, Metropolitan City, or Si/Gun) in consideration of the height of nearby roads and drainage of the land, and Article 58 (1) (3) of the former Enforcement Ordinance of the Urban Planning Act shall be prescribed by Ordinance No. 305,0,00,00,00,0,00,0,00,0,0,0,0,0,00, respectively.

Article 4 (1) 7 of the Enforcement Rule of the Planning Ordinance (amended by the Gyeonggi-do Rules No. 273, Mar. 22, 2004; hereinafter referred to as the "Enforcement Rule of the Planning Ordinance of Gacheon-si") provides that "the base end of the border area under the provisions of Article 20 (1) 3 of the Ordinance shall be the land located less than 50 meters from the 90-meter radius of the sea."

B) The land of this case was located in Gyeonggi-do, Gyeonggi-do,* group**, ***.

*** Si * Dong due to the change of administrative district* in the case of the opposite month, the base height in the case of the opposite month.

Since 90 meters from tidal wave (Article 4 (1) 7 of the Enforcement Rule of the Ordinance on the Urban Planning in Ycheon-si), the base height reflects

on the basis of the standard, only the land located less than 50 meters in height shall be permitted to engage in development activities (e.g., Do);

Article 20(1)3 of the Si Planning Ordinance, which can be developed only when below 140 meters from the tidal wave, and the height of the instant land appears to be 155 meters high from the tidal wave. However, even if development activities are restricted due to the construction of buildings, alteration of the form and quality of land, etc. (see Article 56(1) of the National Land Planning Act), development activities on the instant land, it cannot be deemed that the use of forest, i.e., forest, or forest land, etc., is restricted. In particular, it is not likely that the development of the instant land was conducted or is not likely to have been planned for the development of the instant land, and as long as it is difficult to view that there is a possibility of changing the instant land from forest land to another land category, etc., it is difficult to deem that there was a special restriction on use of the instant land due to the said restriction

Furthermore, as seen earlier, it shall be deemed that the instant land was used as a site for a stock farm.

U.S. business registration is closed even if it is used as a stock farm site for a certain period.

Since December 31, 1994, the land of this case cannot be deemed to have been used as a site for a stock farm (no data exists to regard the current status of the land of this case as a site for a stock farm around March 22, 2004, which was enacted by the Enforcement Rule of the Ordinance of the City Planning in the Gu and Ycheon-si as a site for a stock farm). It is difficult to view that the Plaintiff applied for permission to develop grassland, etc. to have the possibility of changing the land of this case into a site for a stock farm. Therefore, it cannot be deemed that the special restrictions on the use of the land of this case have occurred due to the restriction

3. Conclusion

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

(c)