early 2009 Mine2309 ( August 21, 2009)

Where the review is conducted to maintain the original disposition after the review is conducted in accordance with the review decision of the Tribunal, it shall be subject to an administrative disposition.

Where an investigation is conducted to maintain the original disposition following the review decision of the Tribunal, it is also subject to an administrative disposition subject to an appeal litigation, and in such cases, a lawsuit seeking revocation of the disposition may be filed without undergoing the procedure for a prior trial.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 334,314,154 and additional tax of KRW 73,248,231 against the Plaintiff on May 8, 2009 shall be revoked.

1. Details of the disposition;

A. On February 25, 2002, the Plaintiff and KangB acquired 1/2 shares of each of the 320-6 large 6,265 square meters (hereinafter “instant land”) from the 1/2 shares, and transferred on July 25, 2006.

B. On September 28, 2006, the Plaintiff calculated the transfer value as the standard market price on the premise that the instant land is the land for business (transfer value of KRW 1,569,382,50, acquisition value of KRW 1,559,985,00, and other necessary expenses (transfer value of KRW 46,779,500), and reported to the Defendant on September 28, 2006 the transfer income tax attributed to year 206.

C. On July 3, 2008, the Defendant calculated the transfer value based on the actual transaction value (transfer value of 2,278,800,000, acquisition value of 1,141,850,000), and determined and notified the Plaintiff of KRW 334,314,154, and additional tax for insincereful return and payment of KRW 73,248,231 on the ground that the instant land was subject to reporting on actual transaction value as non-business land (hereinafter “the original disposition of this case”).

D. On April 24, 2009, the Tax Tribunal filed a petition for revocation against the original disposition of this case. On April 24, 2009, the Tax Tribunal rendered a decision to re-examine the designation of urban planning facilities of this case and to compete with the tax base and tax amount according to the results of re-examination.

E. On May 8, 2009, the Defendant did not have validity as to whether the instant land is related to the Plaintiff, in light of the actual utilization status and relevant legal provisions, and did not delay the details of modification of the designation of urban planning facilities with the land that does not fall under the land subject to the establishment of the implementation plan by phase of urban planning, and ② The allegation that the instant land was not used for the project due to justifiable reasons, such as modification of urban planning, was different from the fact that the alteration of urban planning was delayed due to the delay in urban planning, and thus, the initial disposition that determined capital gains tax based on the actual transaction price was just as the land for non-business, and the capital gains tax in 2006 was to maintain the initial decision and to close the on-site verification according to the reexamination decision by the Tax Tribunal (

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. The defense and judgment of this case

A. The defendant's main defense

The defendant asserts that the lawsuit of this case is unlawful since the subject of the appeal of this case is not the second disposition of this case, but the original disposition of this case seeking the revocation of the second disposition of this case, and it is inappropriate or unnecessary to seek the revocation of the second disposition of this case. ② Even if the second disposition of this case is deemed as subject to the appeal litigation of this case as alleged by the plaintiff, the plaintiff does not go through the prior trial seeking the revocation of the second disposition

B. Determination

(1) First of all, the above argument (1) is that the administrative agency's disposition, which is the object of an appeal litigation, is an act of public law of the administrative agency, and refers to an act directly related to the rights and obligations of the people, such as ordering the establishment of rights or the burden of obligations on a specific matter, or directly generating other legal effects. The re-disposition of this case where the existence and scope of tax liability of the plaintiff who is liable for tax payment becomes final and conclusive by deciding to maintain the original imposition decision on capital gains tax in 2006, shall be the disposition of the administrative agency which is the object of an appeal litigation, and the plaintiff's interest

(2) Next, the above argument is examined, and the provisions of Articles 18(2) and (3) and 20 of the Administrative Litigation Act are not applicable to tax litigation. However, if two or more administrative dispositions have been conducted for the same purpose in a phased and developmental manner, and are related to each other, or if the tax authorities have changed the taxation disposition subject to such disposition during the proceeding of the tax litigation and the same administrative disposition is common to the grounds for illegality, or if several persons are jointly liable for the same obligation through the same administrative disposition, the prior disposition is given by the Commissioner of the National Tax Service and the National Tax Tribunal, or if one of the taxpayers is lawful and has followed the procedure of the prior trial, and if there is a justifiable reason, such as where the taxpayer and the National Tax Tribunal provided an opportunity to re-determine the basic facts and legal issues, and it seems that it would be harsh that the taxpayer would be subject to the prior trial and go through the procedure of the prior trial, the taxpayer may file an administrative lawsuit claiming the revocation of the taxation disposition even without going through the prior trial procedure (see Supreme Court Decision 9Du8039, Mar. 27, 2001)

In the case of this case, the fact that the Tax Tribunal filed a request for the cancellation of the original disposition of this case after reviewing the basic facts and legal issues of this case is identical as seen earlier, and thus making the plaintiff go through the previous trial procedure is harsh. Thus, the plaintiff can file a lawsuit seeking the cancellation of the original disposition of this case without going through the previous trial procedure, and therefore, the defendant's assertion 2 is without merit.

3. Judgment on the merits

A. Determination as to whether the re-disposition of this case goes against the binding force of the ruling of this case

(1) Summary of the argument

The purport of the instant ruling is to correct the original disposition of this case, which imposed capital gains tax on the basis of actual transaction price by deeming the instant land as land for non-business use, as it is unlawful. After undergoing a formal reinvestigation, the instant re-disposition imposing capital gains tax equivalent to the amount of the original disposition of this case is unlawful against the binding force of the ruling.

(2) Determination

On the other hand, the binding force of the ruling extends only to the judgment on the specific grounds for illegality, such as the order of the ruling and the recognition and judgment of the facts constituting the premise thereof, i.e., the judgment on the following circumstances, which are acknowledged by comprehensively considering the overall purport of the pleadings in the written evidence Nos. 2 and No. 8, the judgment on the instant land as non-business land, not to cancel the original disposition on the ground that the instant land was unlawful, but rather to cancel the determination on the tax base and tax amount according to the results of reinvestigation, and the Defendant determined the instant land as non-business land as a result of reinvestigation under the purport of the ruling on the instant land. In full view of the following, the Defendant cannot be deemed to have violated the binding force of the ruling on the instant land by imposing capital gains tax equivalent to the amount of the original disposition on the instant land by re-disposition of this case

B. Determination as to whether the instant land is a business land

(1) Summary of the argument

As seen below, the land in this case is the land which has considerable reasons to recognize that it is directly related to the business under Article 168-11 (1) 2, 7, 9, 12 and 14 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21934, Dec. 31, 2009; hereinafter referred to as the "former Enforcement Decree of the Income Tax Act") or the land which is not regarded as the non-business land due to the inevitable reasons under Article 168-14 (1) 1 and 4 of the former Enforcement Decree of the Income Tax Act. Accordingly, the defendant's re-division of this case on the premise that the land in this case is the non-business land is unlawful.

(2) Relevant statutes

The entries in the attached statutes are as follows.

(3) Facts of recognition

(A) On July 24, 1995, the Korea Electric Power Corporation obtained authorization for the installation and implementation plan of urban planning facilities for the entire land from the head of Seoul Metropolitan City north-gu, Seoul Metropolitan City, in order to implement the construction of a substation building on the ground of 320 m320 m3,021 m2. The Korea Electric Power Corporation distributed the instant land to the Plaintiff, etc. in order to reduce the area of the land occupied by the transformation facilities than the initial plan.

(B) The Plaintiff applied for a building permit to establish a temporary building on the instant land to the head of Gwangju Metropolitan City North Korea, but the head of Seoul Metropolitan City North Korea north-gu, Seoul Metropolitan City, on March 20, 2002 and April 26, 2004, notified that it is impossible to construct a building, which is not an urban planning facility, because the instant land is land where urban planning facility installation projects are implemented.

(C) The instant land was excluded from the land on which the urban planning facility installation project was implemented on July 15, 2006.

[Ground of recognition] Facts without dispute, Eul evidence No. 5, Eul evidence No. 6-1, the purport of the whole pleadings

(4) Determination

Under the following, whether the land in this case falls under the land under Article 168-11 (1) 2, 7, 9, 12 and 14 of the former Enforcement Decree of the Income Tax Act or the land which is not considered as the land for non-business due to any inevitable reason, shall be examined as to whether it falls under the land under Article 168-14 (1) 1 and 4 of the former Enforcement Decree of the Income Tax Act.

(A) Whether the land constitutes a land for a parking lot under Article 168-11 (1) 2 of the former Enforcement Decree of the Income Tax Act

It is insufficient to recognize that the land in this case was used as the land for a parking lot falling under the items of Article 168-11 (1) 2 of the former Enforcement Decree of the Income Tax Act before the transfer on July 5, 2006, only by the descriptions of the evidence Nos. 4 through 7 (including the number of branch numbers; hereinafter the same shall apply) and there is no other evidence to acknowledge it.

(B) Whether the land constitutes land for storage, etc. under Article 168-11 (1) 7 of the former Enforcement Decree of the Income Tax Act

It is not sufficient to recognize that the land of this case was used as the land for storage, etc. only with the descriptions of Gap's 8, Gap's 9, 13, and 14 and the images of Gap's 10-2 through 9, and there is no other evidence to prove otherwise.

(C) Whether the land is used for waste disposal business under Article 168-11 (1) 9 of the former Enforcement Decree of the Income Tax Act

The plaintiff argued that the KimCC used 1,50 square meters of the land of this case for waste storage from November 1, 2003 to September 30, 2004, and that since the Gwangju Central Industry Corporation used the land of this case for waste storage from January 1, 2004 to October 30, 2004, the land of this case constitutes "land used by a person who runs a waste disposal business with permission under the Wastes Control Act" under Article 168-11 (1) 9 of the former Enforcement Decree of the Income Tax Act, it is insufficient to recognize that the land of this case falls under "a person who runs a waste disposal business with permission under the Waste Control Act" and there is no other evidence to find otherwise.

(D) Whether the land falls under the land for private teaching institutes for automobile maintenance under Article 168-11 (1) 12 of the former Enforcement Decree of the Income Tax Act

The plaintiff argued that the central Brazil used 100 square meters of the land in this case from 2003 to 2006 for the purpose of maintaining a motor vehicle. Thus, since the land in this case falls under the land stipulated in Article 168-11 (11) 12 of the former Enforcement Decree of the Income Tax Act, the above provision provides for the "land for a private teaching institute which teaches the process of maintaining a motor vehicle, which is not the land used for running a non-commercial business," the above argument by the plaintiff is without merit.

(E) Whether the land falls under Article 168-11 (1) 14 of the former Enforcement Decree of the Income Tax Act

No evidence exists to deem that the instant land falls under the land stipulated in Article 168-11(1)14 of the former Enforcement Decree of the Income Tax Act;

(F) Whether Article 168-14(1)1 or 4 of the former Enforcement Decree of the Income Tax Act falls under Article 168-14(1)4

In order to fall under the land stipulated in Article 168-14 (1) 1 of the former Enforcement Decree of the Income Tax Act, the land of this case shall be the land which is prohibited or restricted from use pursuant to the law after acquiring the land, and the land stipulated in subparagraph 4 of the same paragraph [Article 83-5 (1) 1 or 12 of the Enforcement Rule of the Income Tax Act] of the same paragraph shall not be constructed as the building permit is restricted after acquiring the land, or shall not be used for the business due to justifiable reasons such as alteration of urban planning after acquiring the land, etc. In conclusion, the use of the land or construction of the land shall be prohibited due to changes in circumstances after acquiring all the land.

However, as seen earlier, on July 24, 1995, before the Plaintiff acquired the instant land, the project of urban planning facilities (electric supply facilities) was already implemented in the area of 320 large AAAdong 17,021 square meters in Gwangju North-gu, Gwangju-dong, including the instant land. Therefore, it cannot be deemed that the Plaintiff was prohibited from using the instant land or unable to construct the instant land after acquiring it. Accordingly, the instant land cannot be deemed as falling under the land stipulated in subparagraph 1 or 4 of the said paragraph.

(5) Sub-committee

Therefore, the plaintiff's assertion on this part is without merit on the premise that the land in this case is a land having a reasonable ground to recognize that it is directly related to the business, or that it is not a land for non-business due to an inevitable reason.

4. Conclusion

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