Cho High Court Decision 201Do316 ( November 23, 2011)

Land for non-business because it is excluded from special aggregate taxation as land for unauthorized buildings;

Since it is recognized that there was an unauthorized building on the land from before the acquisition of the land to the time of the transfer, and the head of the Gu can recognize the fact that the transferred land has divided the transferred land into the land subject to general aggregate taxation and imposed the property tax, the transferred land constitutes the land subject to general aggregate taxation excluded

2012Gudan5162 Revocation of Disposition Rejecting Correction

XX 1 other

XX Head of tax office

October 10, 2012

November 7, 2012

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant's rejection disposition of capital gains tax correction request against the plaintiffs on July 15, 2011 shall be revoked.

1. Details of the disposition;

A. On August 7, 1997, the Plaintiffs acquired and owned 3/10 shares of each of 3/10 shares of Gangnam-gu Seoul Metropolitan Government 000-14 and 575.5 square meters (hereinafter referred to as “instant land”) and transferred the instant land to 000 won on September 10, 2010.

B. On October 28, 2010, the Plaintiffs reported and paid 000 won each of them as capital gains tax reverted to 2010, without reporting the instant land as land for non-business use on a long-term holding special deduction.

C. On May 12, 201, the Plaintiffs filed a claim for rectification of income tax with the purport that the Defendant would refund KRW 000 among the already paid tax amounts by applying the special long-term holding deduction to the Defendant by deeming the instant land as the land for business use. However, on July 15, 201, the Defendant rendered the instant disposition rejecting the said claim for rectification on the ground that the instant land constitutes the land subject to comprehensive taxation, as the land subject to comprehensive taxation.

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 4 (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

(1) Since 1981, two buildings without permission were constructed on the instant land, and the said unauthorized building was leased to a household store. However, even at the time when the Plaintiffs acquired the instant land, the said unauthorized building still existed.

(2) The Plaintiffs registered as a real estate rental business entity from the time of acquisition to the time of transfer of the instant land, and leased an unauthorized building on the instant land as a household store.

(3) In addition, in around 199, the instant land was designated as an apartment district development zone (one hundred and sixty percent of the building-to-land ratio) and was able to build only apartment, apartment houses, and detached houses, but it was virtually impossible to build residential buildings, other than commercial buildings, because the instant land is adjacent to the fourth line road.

(4) Therefore, even though the instant land does not fall under the land subject to special aggregate taxation under the Local Tax Act, the instant disposition that deemed the instant land to be detrimental to the non-business land as the land subject to general aggregate taxation is unlawful.

B. Determination

With regard to whether land is a non-business land under the Income Tax Act, the land subject to the separate aggregate taxation of property tax or separate taxation of property tax under Article 106 (1) 2 and 3 of the Local Tax Act for land other than farmland, forest land, and stock farm land is excluded from the non-business land, but it is included in the scope of non-business land in case of land subject to general aggregate taxation (see Article 104-3 (1) 4 (b) of the Income Tax Act). Meanwhile, according to Article 131-2 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 22178, May 31, 2010), the land annexed to

In this case, according to the health stand and the above evidence, the above land was an unauthorized building from around 1981 to the time when the plaintiffs acquired the land of this case and there was an unauthorized building on the land of this case from the time when the plaintiffs acquired the land of this case to the time of transfer, and the head of Gangnam-gu Seoul Metropolitan Government by dividing the land of this case from 2006 to 2010 into the land subject to general aggregate taxation and imposing property tax on the land of this case. Accordingly, the land of this case is excluded from the land subject to general aggregate taxation and included in the scope of land subject to general aggregate taxation under the Income Tax Act, so

3. Conclusion

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