Whether it falls under the special taxation for capital gains tax on real estate for public services

In order to be subject to the special taxation of capital gains tax, it is reasonable to interpret that the resident should acquire real estate in the designated area prior to the three days prior to the designation of the designated area, such as the "date of approval and announcement of the business plan", "the second anniversary retroactively from the date of the public announcement of the public announcement," and "the date of designation of the designated area if the approval and announcement of the business plan became due after the designation of the designated area".

Article 85 of the Restriction of Special Taxation Act, real estate for public service in the designated area.

1. The plaintiff's claim is dismissed.

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

The defendant's rejection of correction of the transfer income tax belonging to the year 2005 against the plaintiff on April 28, 2006 shall be revoked.

1. Details of the disposition;

A. On October 8, 2003, the Plaintiff acquired and held 5/10 of the 376-9 m2,048 m2 (hereinafter “instant land”). On January 11, 2004, the Governor of the Gyeonggi-do approved a housing site development project plan under Article 16 of the Housing Act on the 475 m2,805 m2,000 m2,000,000,000,000,0000,0000,0000,0000,0000,0000,0000,0000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000.

B. Meanwhile, on May 29, 2004, the Minister of Finance and Economy designated ○○ City where the instant land is located as a designated area under Article 96 (1) 6-2 of the former Income Tax Act (amended by Act No. 7837, Dec. 31, 2005; hereinafter the same) where the transfer value and acquisition value are calculated based on the actual transaction value pursuant to the proviso of Articles 96 (1) and 6-2 and 97 (1) 1 (a) of the former Income Tax Act (hereinafter referred to as “designated area”).

C. On July 31, 2005, the Plaintiff calculated the transfer value and acquisition value of the instant land as the actual transaction value, calculated gains from transfer based on such calculation, made a preliminary return on the tax base of transfer, and paid KRW 73,579,140.

D. On October 8, 2003, the date on which the Plaintiff acquired the instant land was designated by the Minister of Finance and Economy as the designated area. As such, the Plaintiff asserted that the instant land constitutes the special taxation for transfer income tax on real estate for public works within the designated area under Article 85 of the former Restriction of Special Taxation Act (amended by Act No. 7839, Dec. 31, 2005; hereinafter the same shall apply) and that the transfer value and acquisition value of the instant land should be calculated on the basis of the standard market price. On February 23, 2006, the Plaintiff filed a claim for correction of KRW 47,251,390 out of the transfer income tax for the year 2005 reverted to the Defendant, but the Defendant rejected the claim for correction on April 28, 2006.

E. The Plaintiff filed a request for examination on December 4, 2006 after filing an objection on July 28, 2006, but was dismissed by the Commissioner of the National Tax Service on February 13, 2007.

[Reasons for Recognition] Evidence Nos. 1 through 4, Evidence Nos. 1 to 1, and the purport of the whole alteration

2. Whether the disposition is lawful;

A. The plaintiff's assertion

As of October 8, 2003, the acquisition date of the land of this case is before October 11, 2004, which is the date of approval of the business plan, and it is before May 29, 2004, which is the date designated as an speculative area. Thus, even though the standard market price should be calculated on the basis of the standard market price, the Defendant’s acquisition of the land of this case should be made only before the earlier of the approval date of the business plan, the date of approval of the business plan, the date of two years retroactively from the date of approval of the business plan, and the date of designation of speculative area

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 85 of the Restriction of Special Taxation Act shall provide for the date prescribed by each of the following subparagraphs (referring to the date of public announcement by the head of the relevant administrative agency in the Official Gazette or the official bulletin; where the date of public announcement is within two years retroactively from the date of public announcement of the project approval, it refers to the date of designation of the designated area where the date of announcement arrives after the designation under Article 96 (1) 6-2 of the Income Tax Act; where the date of announcement arrives after the designated area under Article 96 (1) 6-2 of the Income Tax Act or other Acts before December 31, 2006, it shall be referred to as the date of designation of the land compensation area under Article 96 (1) 6-2 and the proviso of Article 97 (1) 1 (a) of the former Enforcement Decree of the Income Tax Act, and where the land is transferred to the relevant project operator under the same Act or other Acts, it shall be referred to as the date of public announcement of the project approval under Article 1 through 4 of the Housing Development Promotion of Special Taxation Act;

Therefore, Article 85 of the former Restriction of Special Taxation Act provides that where the date of public announcement is within two years retroactively from the date of public announcement, "the date of designation of the designated area" and "the date of public announcement where the designated area arrives later than the date of the designation of the designated area" as mentioned above, but the legislative intent of Article 85 of the former Restriction of Special Taxation Act provides that even real estate in the designated area shall be transferred or expropriated for the purpose of public interest regardless of the owner's intention, taxpayers' tax burden shall be reduced by imposing tax on the standard market price instead of the actual transaction price, and the smooth implementation of public projects shall be promoted at the same time, and the acquisition of real estate in the designated area is highly likely to be carried out by the field survey if it is not more than two years prior to the date of public announcement. Considering that the acquisition of real estate in the designated area was actually carried out by taxation based on the actual transaction price according to the principle of special taxation in the original special taxation, the date of public announcement shall be construed as "the date of approval and announcement of business plan" and the date of public announcement within two years retroactively.

Therefore, the disposition of this case that held that the transfer of the land of this case does not constitute the special taxation of capital gains tax under Article 85 of the former Restriction of Special Taxation Act on the ground that the Plaintiff acquired the land of this case only before the designated date of the designated area, and that the transfer of the land of this case did not constitute the special taxation of capital gains tax under Article 85 of the former Restriction of Special Taxation Act on October 8, 2002, which is deemed as the public announcement date of the project approval.

3. Conclusion

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