Seocho 2013west 1362 (Law No. 13, 2013)

Land acquired by the State under Article 7 of the Act on the Improvement of Water Quality and Support for Residents of the Han River Basin shall not be deemed land for public services.

As the Plaintiff transferred the instant land between the State by means of private trade pursuant to Article 7 of the Han River Watershed Act, it cannot be viewed as a compulsory expropriation, etc. under Article 77(1)1 of the Restriction of Special Taxation Act.

2013Gudan25293 Revocation of Disposition of Imposing capital gains tax

00AA

Head of the District Tax Office

May 14, 2014

June 11, 2014

1. The plaintiff's claim is dismissed.

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

The imposition of OO(including additional tax) of capital gains tax belonging to the year 2012, which the defendant of the Gu office established on December 5, 2012 against the plaintiff on December 5, 2012 shall be revoked.

1. Details of the disposition;

A. On May 2, 1985, the Plaintiff acquired 1 00 m2,000 m2,000 m2,000 m2,000 m2,000 m2,0000 m2,0000 m2,0000 m2,0000,000,0000,0000,0000,000,000,0000,000,0000,0000,0000,0000,000,0000,0000,000,000,0000,000,000,0000,000,000,000,000,000,0000,000,000,000,000,000.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Claim for special deduction held for long-term holding

원고는 1985년 이 사건 토지에 관하여 건축허가 등에 아무런 제한이 없어 주말농 장용으로 취득하였다. 그런데 이 사건 토지는 1999년 팔당호 등 한강수계상수원의 수질관리 특별대책의 일환으로 수변구역으로 지정・ｵ고시되고, 2009. 11.경 양평군의 오염총량관리계획이 승인된 후 토지의 형질변경마저 금지되었다. 따라서 이 사건 토지는 소득세법 시행령 제168조의14(부득이한 사유가 있어 비사업용 토지로 보지 아니하는 토지의 판정기준 등) 제1항 제1호의 '토지를 취득한 후 법령에 따라 사용이 금지 또는 제한된 토지'에 해당하고, 또한 같은 조 제3항 제3호 "공익 사업을 위한 토지 등의 취득 및 보상에 관한 법률(이하 '공익사업법'이라 한다) 및 그 밖의 법률에 따라 협의매수 또는 수용되는 토지로서 사업인정고시일이 2006년 12월 31일 이전인 토지 또는 취득일이 사업인정고시일부터 5년 이전인 토지"에 해당한다. 그러므로 이 사건 토지를 '비사업용 토지'에 해당한다고 보아 장기보유 특별공제를 배제한 피고의 처분은 위법하다.

(ii) argument for tax reduction or exemption;

As seen earlier, on November 2009, the head of Bupyeong-gu Gun established and obtained approval from the Minister of Environment for a total pollution load control plan with respect to the whole area of the instant land. This is considered as a "water quality improvement project plan" under Article 13(2) of the Han River Watershed Act, and when the Minister of Environment has approved a water quality improvement project plan under Article 14(2) of the said Act, it is deemed that the project has been approved and publicly notified under the Public Works Act

Therefore, the Plaintiff’s transfer of the instant land to the Ministry of Environment constitutes a case where “transfer of land, etc. necessary for public works to which the Public Works Act applies” under Article 77(1)1 of the Restriction of Special Taxation Act. Nevertheless, the Defendant’s disposition that excluded the tax reduction prescribed in the same Article is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the assertion of special deduction for long-term possession

According to Article 95 (1) and (2) of the Income Tax Act, where certain assets are transferred after holding them for not less than three years, capital gains shall be calculated by deducting the special deduction amount for long-term holding from gains from transfer, and "land for non-business" under Article 104-3 (1) of the same Act shall be excluded from the special deduction for long-term holding. Article 104-3 (1) of the same Act provides that "land for non-business use", "land for which the owner does not reside in the land or does not cultivate himself/herself," and "forest ( subparagraph 1 (a) and 2): Provided, That in cases of forest land, "forest for public interest, such as forest genetic resources protection area designated under the related Acts and subordinate statutes ( subparagraph 2 (a) or forest land owned by a person residing in the land for non-business use, etc." (Article 104-3 (2) of the same Act provides that "land for which the use of such land is restricted by the Act or the inevitable reasons prescribed by Presidential Decree is not subject to paragraph 14 of the same Article."

According to the systematic interpretation of the provisions of the relevant laws and regulations, "farmland which the owner does not reside at his/her seat or does not cultivate himself/herself," and "forest land" are excluded from the special deduction for long-term holding as land for non-business in principle. However, if it falls under the above non-business land due to inevitable reasons such as prohibition of use under the law, it can be deemed that it does not constitute the land for non-business

In light of the following facts: (a) the Plaintiff purchased the instant land for a weekend farm; (b) the Plaintiff did not reside in the location of the instant land, which is the land category; (c) there is no evidence to deem that the instant land was used differently from the land category; (d) on the other hand, the Plaintiff purchased the instant land for the purpose of a weekend farm; (b) on the other hand, there is no evidence to deem that the instant land was used for the purpose of using the said land for non-business purposes, such as the “land which the owner does not reside in the location; and (c) the “forest” under Article 104-3(1) of the Income Tax Act, and the “land for non-business purposes,” in principle, because the instant land falls under the “land for non-business purposes” as stipulated in Article 104-3(2) of the Income Tax Act, and (d) the Plaintiff could not be included in the “land for non-business purposes” or the “land for which the Plaintiff acquired the instant land for non-business purposes without any inevitable reasons for non-business purposes,” under Article 198(1) of the Income Tax Act.

2) Determination on the assertion of tax reduction or exemption under the Restriction of Special Taxation Act

Article 77(1)1 of the Restriction of Special Taxation Act provides that the tax amount shall be reduced or exempted according to certain requirements with respect to "income accruing from the transfer of land, etc. necessary for the public works to which the Public Works Act applies to the operator of the public works project." The purpose of this provision is to provide support for the smooth implementation of the public works, and to ease the burden of capital gains tax in consideration of the fact that even if the landowner does not respond to the purchase by consultation, he/she is bound to assume the disadvantage that his/her land is expropriated for the public works. In addition, it is interpreted that the Seoul High Court intends to achieve harmony between the enhancement of public interest and the public interest in taxation (see Supreme Court Decision 2010Nu34592, Apr.

Meanwhile, Article 7 of the Han River Watershed Act provides that "the State may purchase a parcel of land in an area necessary for preserving the quality of water sources, such as a riparian zone, from the Han River basin, if the owner of such land intends to sell the land, etc. to the State," and Article 14 of the same Act provides that "the implementer of a water quality improvement project may expropriate or use the land, etc. necessary for the water quality improvement project" (Article 1). "If the Minister of Environment approves the approval of the Minister of Environment for a water quality improvement project pursuant to the Public Works Act, the project approval and the notice thereof shall be deemed granted or given pursuant to the Public Works Act" (Article 2 (2)), and "the Land Tribunal having jurisdiction over the adjudication on expropriation of land, etc. under paragraph (1) shall be the Central Land Tribunal (Article 4)" and "the Public Works Act (Article 7 (5)) shall apply mutatis mutandis to the expropriation or use under paragraph (1). In light of the provisions of the relevant Act and subordinate statutes, the plaintiff shall transfer the land in this case to the State through private law pursuant to Article 7 of the Han River Act.

Article 14 of the Han River Watershed Act that the Plaintiff asserts is interpreted to the effect that Article 14 (2) of the same Act applies to the case where a water quality improvement project implementer intends to compulsorily expropriate or use land necessary for the implementation of the project shall be deemed to have obtained approval of the Minister of Environment on the project plan, and the project approval and announcement thereof shall be deemed to have been made pursuant to the Public Works Act, and the competent Land Tribunal shall be clearly designated, and the provisions of the comprehensive provisions concerning the expropriation or use of the zone subject to coercion shall be prepared, thereby simplification of the project procedures and clarifying the relevant provisions. Therefore, the provision of Article 14 (2) of the same Act that applies to the case where a private trade contract is concluded between the Plaintiff and the State as in the instant case. Accordingly, the Plaintiff’s assertion on this part is without merit

3. Conclusion

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