Seoul Administrative Court-2014-Gu Group-15101 ( October 30, 2015)

Scope of land for non-business subject to special deduction for long-term holding;

It can not be viewed as a business land subject to special deduction for long-term holding only because it is actually used for business or it is approved by a public institution, and it can not be viewed that the principle of trust protection applies only to the fact of imposing local taxes.

2015Nu55938 Revocation of Disposition of Imposing capital gains tax

BAA

Head of Seodaemun Tax Office

National Rotations

October 20, 2016

November 17, 2016

1. Revocation of the part against the plaintiff falling under the order to revoke the following among the judgment of the first instance;

(c)

Disposition imposing capital gains tax of KRW 158,55,160 on the Plaintiff on August 5, 2013 by the Defendant

The part exceeding 157,464,301 won shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 99% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The judgment of the first instance shall be revoked. The disposition of imposition of KRW 100,764,940, among the disposition of imposition of KRW 158,55,160, which the Defendant imposed on the Plaintiff on August 5, 2013, shall be revoked.

1. Details of the disposition;

A. On February 26, 2001, the Plaintiff acquired ○○○○○ 4,753 square meters (hereinafter “the instant land”) and newly constructed and operated a LPG gas charging station building (hereinafter “the instant building”) on the ground around December 12, 2001. On October 15, 201, the Plaintiff transferred the instant land and the instant building to ○○○○ and the instant stock company (hereinafter “the instant transfer”).

B. On December 31, 2010, the Plaintiff applied the special deduction provision for long-term possession under the Income Tax Act to the Defendant on the premise that the entire land of this case constitutes a business land.

was made.

C. On August 5, 2013, the Defendant corrected and notified the Plaintiff on the premise that “The land for business is seven times the floor area of the instant building 308.1 square meters among the instant land, or the land for business use, which exceeds 2,596.3 square meters (hereinafter referred to as “the instant land”) and the land for business use is the land for non-business use.” Under the premise that “The instant land is the land for which 2,596.3 square meters in excess of the above 2,596.3 square meters in excess of the above 2,596.3 square meters in the instant land” (hereinafter referred to as “the instant disposition”), 158,55,160 won in capital gains tax calculated by excluding the application of the special deduction provisions for long-term possession under the Income Tax Act to the instant land (i.e., total determined tax amount of KRW 992,213,513 - total determined tax amount of KRW 833,658,

D. On November 7, 2013, the Plaintiff appealed for a trial with the Tax Tribunal on the grounds that the appeal was filed, but the appeal was filed.

July 29, 2014.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 25, 26, Eul evidence No. 1 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) On July 13, 2000, the Plaintiff’s area of the permitted site for the instant land from the high-sea market

4,635 square meters, 232.5 square meters of the building area, and 20 tons of storage capacity (bane), LPG gas charging stations were operated with the permission of LPG gas charging station. LPG gas charging stations have to maintain safety distance as hazardous materials facilities, and the minimum area necessary for maintaining safety distance is the permitted area. In addition, in imposing property tax on the instant land from 2002 to 2012, the entire area of the instant land was deemed as the business site of the instant building, and was deemed as the business site of the instant building. Therefore, since it is apparent that the entire land, including the instant land at the time of the transfer of this case, including the instant land, was subject to special aggregate taxation as property tax, the issue of this case also falls under the special aggregate taxation for long-term possession under the Income Tax Act, and it does not change merely because the Defendant issued a corrective disposition more than three years.

2) The key land in this case is the land located within the safety distance by the technical standards for gas filling stations for the sake of the surrounding safety, and is not the land for non-business use, since it falls under Article 104-3(2) of the former Income Tax Act (Act No. 10337, May 31, 2010), Article 168-14(3)5 of the former Enforcement Decree of Income Tax Act (Presidential Decree No. 22395, Sept. 20, 2010) and Article 83-5(4)1 of the former Enforcement Rule of Income Tax Act (Ordinance No. 154, Apr. 30, 2010) as the land located within the area where the pollution of the living environment is caused by noise, dust, malodor, etc. due to the operation of factories, which is the land acquired at the request of the landowner.

3) At the time of the instant disposition, the Defendant deemed the floor area of the instant building as 308.1 square meters, and deemed the 2,156.7 square meters as business land, which is 7 times the said 7folds. However, since the floor area of the instant building is 310.5 square meters, the 2,173.5 square meters, which is 7 times the said 2,173 square meters, constitute business land. Therefore, the instant disposition is unlawful in

4) The Plaintiff, at the time of filing a preliminary return on the tax base of capital gains on December 31, 2010, received the data that the entire land of this case is imposed with property tax for business purposes, and filed a faithful return and paid capital gains tax accordingly. As such, the part on the additional tax for negligent return and for negligent payment among the instant disposition is unlawful. Moreover, as seen below, the floor area of the instant building is 310.5 square meters, the part on the additional tax for negligent return and for negligent payment among the instant disposition is unlawful.

In particular, in the case of additional tax for unfaithful payment, since the unpaid days of additional tax are not specified in the tax payment notice and the detailed number of unpaid days and the calculation details of the amount subject to additional tax are omitted, it constitutes an unlawful taxation disposition.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the entire land of this case is a business land as a special aggregate taxation of property tax

A) The former Income Tax Act (amended by Act No. 10408, Dec. 27, 2010; hereinafter the same) provides that the special deduction for long-term holding shall be deducted in calculating capital gains. Land for non-business purposes shall be excluded from the special deduction for long-term holding (Article 95(1), (2), and Article 104(1)8). Moreover, land subject to the special deduction for property tax under the Local Tax Act among land other than farmland, forest land, and stock farms under the former Income Tax Act is excluded from the scope of non-business land (Article 104-3(1)4(b). Ultimately, land subject to the special deduction for property tax under the Local Tax Act is subject to the special deduction for long-term holding under the Income Tax Act because it falls under a business land (Article 104-

The principle of no taxation without law prevents the requirements of taxation or tax exemption.

The interpretation of tax laws and regulations shall, unless there are special circumstances, be interpreted in accordance with the text of the law and without reasonable grounds.

No expanded interpretation or analogical interpretation is allowed, and in particular, it is a strict interpretation that can be seen as a clearly preferential provision among the requirements for reduction or exemption.

Compared with the foregoing (see, e.g., Supreme Court Decisions 97Nu20090, Mar. 27, 1998; 2002Du9537, Jan. 24, 2003).

In light of the following facts and circumstances, the entire land of this case, including the instant land, cannot be deemed as a land for business purposes excluded from the non-business land as a special aggregate taxation of property tax, and the evidence submitted by the Plaintiff alone is insufficient to recognize it, in light of the following facts and circumstances, which are acknowledged by comprehensively considering the overall purport of the pleadings as a result of the fact inquiry conducted on December 8, 2015, and May 30, 2016.

(1) From 2006 to 2010, the head of Mangsan-dong imposed property tax on the Plaintiff by deeming the entire land of the instant case as a separate aggregate taxation of property tax, which is due to mistake, and around 2013, the key part of the instant land as a general aggregate taxation of property tax, and the remaining part of the instant land as a separate aggregate taxation of property tax from 2008 to 2010.

Pursuant to Article 191(2) of the former Local Tax Act (amended by Act No. 10416, Dec. 27, 2010; hereinafter the same), the head of the Si/Gun/Gu in Ilyang-dong, Busan-dong, in which case the entire land of this case is deemed an object of general aggregate taxation of the property tax, is obviously erroneous, and the head of the Si/Gun may impose and collect taxes from time to time when any ground arises for changing the amount of taxes already imposed due to mistake, etc., so it cannot be deemed that the head of the Si/Gun/Dong-dong, Busan-dong, in which

Secondly, the defendant did not express his opinion that the land at issue at issue at issue at issue at issue is subject to separate aggregate of property tax, and since the defendant is an administrative agency separate from the head of the Dong-dong and the defendant, it cannot be deemed that the defendant was the defendant to impose the property tax of the head of Ilyang-dong at issue. Thus, it cannot be deemed that there was any public opinion expressed by the defendant concerning the land at issue prior to the disposition at issue, and there

In light of the building ledger, building permit, and approval of use of the building of this case, the purpose of the building of this case is to store and treat dangerous substances under the former Building Act (amended by Act No. 10599, Apr. 14, 201; hereinafter the same) and the factory is to separately use the storage and treatment facilities of dangerous substances under the former Building Act (amended by Act No. 10599, Apr. 14, 201) (see Articles 2(2)17 and 19). Since the building of this case is deemed a factory under the Building Act, it cannot be deemed that the land of this case falls under the adjacent land of the factory of Article 83-5(4)1 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance, Mar. 28, 2011) and there is no data to regard that the land of this case is adjacent to the factory and the land in the region where pollution damage

(v) Article 104-3 (1) 4 (c) of the former Income Tax Act provides that "any land prescribed by Presidential Decree as having considerable reasons to be directly related to residence or business, taking into account the situation of the use of the land, whether the obligation under the relevant Act is fulfilled, and the amount of income, etc., shall be excluded from the land for non-business use." Accordingly, Article 168-1 (1) of the former Enforcement Decree of Income Tax Act (amended by Presidential Decree No. 22560, Dec. 29, 2010) specifically lists the scope of the land excluded from the land for non-business use. The business site of the LPG gas charging station, such as the land in this case

⑹ 이 사건 토지가 사실상 LPG가스 충전소의 사업부지로 사용되었으며, 관련 법령이 정하는 바에 따라 충전설비 등과의 안전거리 이내에 위치하고 있다거나 일반인으로서는 사업부지와 소득세법상 사업용 토지의 개념을 구분하여 알기 어렵다는 사정만으로는, 조세법률주의의 원칙상 이 사건 쟁점 토지를 비롯한 이 사건 토지 전체가소득세법상 비사업용 토지에서 제외되어 사업용 토지에 해당한다고 해석할 수는 없다.

B) Therefore, among the instant land, only the area corresponding to the land annexed to the instant building owned by the Plaintiff as at the time of the tax base date of capital gains tax assessment against the Plaintiff becomes a separate aggregate taxation of property tax (Article 182(1)2 of the former Local Tax Act), and the remaining area of the instant land should be deemed as a property general aggregate taxation of property tax, as

2) Specific description of the area of land for non-business use in the instant land

A) According to Article 182(1)2 of the former Local Tax Act and Article 131-2(1)2 and (2) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 22586, Dec. 30, 2010; hereinafter the same), land within the scope of the area calculated by multiplying seven times the floor area of a building among land annexed to a building, other than an urban area, is excluded from the land subject to special aggregate taxation of property tax.

The following facts or circumstances are acknowledged in light of the overall purport of the pleadings and the video contents of evidence Nos. 5, 11, 15, and 27.

(1) Article 2(1)2 of the former Building Act provides, “A building means a structure settled on the land, with a roof and columns or walls, and facilities appurtenant thereto, and an office, performance place, shop, garage, warehouse installed on underground or elevated structures, and other facilities prescribed by Presidential Decree.” Article 119(1)3 of the former Enforcement Decree of the Building Act provides, “the floor area: the floor area is the horizontal plane projection area of the part enclosed by the center line of each floor of the building or any part thereof, and the wall, column, or other similar division.” Article 2(1)2 of the former Enforcement Decree of the Local Tax Act provides that “The floor area of the building shall be the horizontal plane projection area of the part enclosed by the center line of each floor or any part thereof.” Article 131-2(1)2 of the former Enforcement Decree of the Local Tax Act provides that the lower tax rate of the land provided for economic activities, such as the land annexed to the building, shall be deemed the largest floor area of each floor (see Supreme Court Decision 2012Du7373, Jun. 24, 2015).

B. The instant building on the ground of the instant land consists of operation, operation, operation, and operation.

In the operation, there is a two-story building and a three-story building in which an office and a lodging room are located, gas in the Dong, and there is a gas tank in the multi-dong. The area of the operation on the building ledger of the building of this case is 110.1 square meters in the office of the first floor, 112.5 square meters in the office of the second floor, 112.5 square meters in the office of the second floor, and 78 square meters in the office of the second floor, and the area of the two-story is 78 square meters in the gas in the area of the

The office, the office, the office and the office and the office and the office and the vice-director of the office were constructed adjacent to each other, and the size and use of the office and the color of the office and the office and the office and the office and the office are different from each other in appearance and appears to have been designed as an independent building in terms of the architectural drawing. In addition, the office and the office and the office and the office and the office were expanded on June 21, 2006.

Therefore, since the office and lodging building and the third director are separate buildings, the floor area should be calculated by each building.

Then, the defendant asserts that the part of the area of 2.4 square meters in the front floor of the second floor in operation is the front floor of the building, and that the value calculated in accordance with Article 119(1)3(b) of the former Enforcement Decree of the Building Act should be included in the floor area. However, it is obvious that the horizontal plane projection area of the front floor in the second floor in operation is the value excluding the area of the above front floor, so the above argument by the defendant is without merit.

(v) On the other hand, the instant land in the building ledger is classified as a management area under the former National Land Planning and Utilization Act (amended by Act No. 11798, May 22, 2013), and does not fall under an urban area.

B) Therefore, the floor area of the instant building under the Building Act is 310.5 square meters [2] [190.5 square meters in operation (i.e., 2 stories + 112.5 square meters in a lodging house with 2 stories + 78 square meters in a 78 square meters east 42 square meters in a 2,173 square meters in a 2,173 square meters in a 7-5 square meters in an area calculated by multiplying the above floor area by 7 times, which is the applicable distribution rate applicable to specific use areas other than an urban area. Of the instant land, 2,173.5 square meters in a 2,579 square meters in a 2,579.5 square meters in a 2,579 square meters in a 2,753 square meters in a 2,173.5 square meters in a 2

3) Determination on additional tax portion

A) The Plaintiff asserts to the effect that it is unlawful to impose an additional tax on the Plaintiff, since the Plaintiff reported and paid the transfer income tax by reliance on the notification of the head of the Dong-dong Office, which is the special aggregate taxation subject to separate taxation.

However, in order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed as prescribed by individual tax law in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, and does not constitute justifiable grounds that do not constitute a breach of duty (see, e.g., Supreme Court Decision 2016Du44391, Oct. 27, 2016). The Plaintiff’s error in the deduction of special deduction for long-term possession among transfer values, thereby making a preliminary return of tax base for capital gains and paying capital gains tax accordingly, without properly calculating the amount of capital gains that serves as the basis for the tax base for capital gains, which constitutes a legitimate ground for exemption from additional tax in light of the aforementioned legal principles. Therefore, the Plaintiff’s assertion in this part is without merit.

B) In addition, the Plaintiff asserts to the purport that the part of the disposition of this case is unlawful, since the Plaintiff omitted the calculation details of the unpaid number of days of additional payment and the amount subject to additional tax.

In full view of the contents of evidence No. 26 of this case, the tax payment notice on the disposition of this case contains all the tax bases, tax rates, calculated tax amounts, and other necessary matters, and in the part of the calculation basis of additional tax, the additional tax on the additional tax on the part of the calculation basis of additional tax, the target amount.

It can be recognized that 122,826,784, 0.00% of the tax rate, 0.0300% of the tax rate, 33,641,982 of the tax amount are stated. According to this, since it is obvious that the number of unpaid days is 913 days by simple calculation, it cannot be deemed that the basis for calculation of additional tax is not indicated unless it is specified specifically.

In addition, the "amount of money to be the basis for calculating the additional tax for unfaithful payment" was reported and paid by the plaintiff.

Since it means the amount underpaid out of the amount, it cannot be deemed unlawful on the ground that the basis of calculation was not disclosed separately. Therefore, the Plaintiff’s assertion is without merit.

C) However, as seen earlier, the instant disposition was conducted by mistakenly calculating and calculating the area corresponding to the non-business land among the instant land. As such, the portion of the penalty tax in the instant disposition is also unlawful within the extent that exceeds the penalty tax calculated by the correct area. Therefore, the Plaintiff’s assertion pointing this out is erroneous in calculating the area of the non-business land

The reason is within the scope of under-reported additional taxes and for-paid additional taxes due to such filing.

(iv)the calculation of a reasonable amount of tax;

Of the instant land, the portion of 2,173.5 square meters, which is seven times the floor area of the instant building 310.5 square meters, among the instant land, shall be deemed as land for business, and the portion exceeding the aforementioned 2,579.5 square meters shall be deemed as land for business, and when the Plaintiff calculated the Plaintiff’s capital gains tax by excluding the application of the special deduction for long-term possession under the Income Tax Act to the said 2,579 square meters, it shall be deemed as KRW 91,122,646 as follows. If the said amount is deducted from the said amount of KRW 833,658,345, the amount of tax for reasonable deduction shall be KRW 157,464,301, and thus, the portion exceeding the said legitimate

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the above scope of recognition and the remainder is dismissed as there is no ground. Since part of the judgment of the court of first instance against the plaintiff is unfair, the plaintiff's appeal is partially accepted, and it is revoked, and the plaintiff's claim corresponding to the above revoked part is accepted, and the remaining appeal of the plaintiff is dismissed. It is so decided as per Disposition.