early 2010 Heavy2511 ( October 05, 2010)

It is insufficient to recognize as forest directly related to the duties.

In principle, forest land is limited to cases where land not falling under the non-business land is a business without speculative purpose in light of the nature of the corporation, the acquiring entity of the land, or the use of the land. However, there is no data on the situation that the forest of this case must be acquired in order to run the business, and considering the location, use status, possession period, size of the land, etc., it is insufficient to recognize that the forest is a forest directly related to the business at

2010Guhap18179 Revocation of Disposition of Imposing corporate tax

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port of origin

October 27, 2011

November 24, 2011

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 2,967,980,146 for the business year 2008 against the Plaintiff on November 1, 2009 and the disposition of imposition of KRW 85,505,080 for the business year 2009 is revoked.

1. Details of the disposition;

A. From December 5, 2007, the Plaintiff, a corporation engaged in real estate sales business, acquired 23,685 m23, 00-0 m23, 685 m2 on January 22, 2008 and 139,752 m2 m2 on January 25, 2008, each of the above forests was divided or transferred to others in shares in each business year for 2008, 2009 (hereinafter “the above forests and fields”).

B. Since July 2009, the director of the Central Regional Tax Office: (a) conducted an investigation of corporate tax against the Plaintiff from July 2009 to October 20; and (b) notified the Defendant that the forest of this case constitutes land for non-business under Article 55-2 of the Corporate Tax Act; and (c) the Plaintiff failed to pay corporate tax on the capital gains

C. On November 1, 2009, the Defendant decided and notified the amount of corporate tax of 2,967,980,140, corporate tax of 2008, corporate tax of 2009, corporate tax of 85,505,080, and corporate tax of 2009 (hereinafter “instant disposition”).

D. On July 7, 2010, the Plaintiff filed an objection against the instant disposition with the Tax Tribunal for a trial on July 7, 2010, but the said claim was dismissed on October 5, 2010.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 6, Eul evidence 1 to 8 (including paper numbers) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

(1) The Plaintiff acquired the instant woodland for real estate development (sale) business, which is an object business under the articles of incorporation, and transferred it. Since the instant woodland is the Plaintiff’s inventory as goods, it shall be deemed the Plaintiff’s land directly related to the Plaintiff’s business, i.e., the land for business. In light of the legislative intent of Article 55-2 of the Corporate Tax Act, which was enacted to recover speculative profits on the land for non-business owned by the corporation, it is unfair because the real estate sales businessman is recognized and taxed as a real estate speculation consumer. In addition, Article 55-2(2)2 of the Corporate Tax Act specifies the “forest” as the land for non-business use, and delegates it to the Enforcement Decree on the land excluded from the land for non-business use. Article 92-6(4)7 of the Enforcement Decree of the Corporate Tax Act delegated the Ministry of Strategy and Finance with the scope of the forest excluded from the land for non-business use, but it was not enacted by this Ordinance, applying the strict criteria for exclusion from the land for non-business use to the Plaintiff is deemed to be unreasonable (hereinafter “State”).

(2) Unlike the Corporate Tax Act, the Income Tax Act, which applies to an individual entrepreneur, provides for an exception that the forest owned by a person who resides in the forest where the forest is located is excluded from the non-business land (Article 104-3 (1) 2 (b) of the Income Tax Act). Although the Plaintiff has the form of a legal entity, the Plaintiff is a company that is only one representative director, and is in fact an individual entrepreneur, and the same applies to the same case. Therefore, in applying the above provisions of the Income Tax Act to the principle of substantial taxation or the principle of taxation, it is necessary to determine whether the forest of this case is a non-commercial land. Accordingly, the forest of this case should be excluded from the non-commercial land (hereinafter referred to as the “head of

(3) Article 55-2(8) of the Corporate Tax Act amended by Act No. 9673, May 21, 2009

31. A newly established provision that does not apply to the income accrued from the transfer of land, etc. (non-business land). This is because the provision on heavy taxation on previous non-business land is declared to be in violation of the tax equity. Thus, even if it conforms to the contents and purport of the newly established provision, the disposition of this case is contrary to the tax equity (hereinafter referred to as the "section 3").

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to paragraph (1)

Article 55-2 (1) 3 of the Corporate Tax Act (amended by Act No. 9673 of May 21, 2009; hereinafter the same shall apply) stipulates that the tax amount calculated by multiplying the transfer income of land, etc. by 30/10 shall be paid as the corporate tax on the transfer income of land, etc. In case where a domestic corporation transfers land for non-business, Article 55-2 (2) of the Corporate Tax Act lists land corresponding to "non-business land" as the corporate tax on the transfer income of land, etc., and subparagraph 2 of Article 5-2 (2) of the same Act lists "forest land" as one of "non-business land" in principle, and exceptionally excludes the forests listed in each item. However, among the forests excluded from the non-business land, subparagraph 2 (c) of the above "forest land which has considerable reasons to recognize that it is directly related to the business of the corporation in consideration of the owner, location, utilization status, holding period, area, etc. of the above land." Accordingly, it shall be delegated by Presidential Decree.

Article 92-6 (4) of the Enforcement Decree of the Corporate Tax Act provides that "the forest directly related to the corporation's business shall be prescribed by Ordinance of the Ministry of Strategy and Finance by taking into account the owner, location, holding period and size of the land." However, the purpose of Article 55-2 (1) 3 of the Corporate Tax Act is to strengthen the taxation of the corporation's non-business land, and it is to stabilize the real estate market and to recover the profit from the corporation using the land as a means of producing the land without any specific purpose, and the above provision of Article 5-2 (2) 2 of the Corporate Tax Act provides that the land shall be included in the land for non-business under Article 5-2 (2) 7 of the Enforcement Decree of the Corporate Tax Act, and it shall not be included in the land for non-business business regardless of its purpose and purpose, and it shall not be recognized that the land is not subject to the above provisions of Article 55-2 (2) 2 of the Enforcement Decree of the Corporate Tax Act for non-business business regardless of its purpose.

(2) As to the claim

Even if there are exceptions in the Income Tax Act to exclude the local forest land from the non-business land, the Corporate Tax Act and the Income Tax Act are different in terms of the subject of taxation and the purpose of legislation. Even if the Plaintiff is a single-person company, so it cannot be said that the application of the Corporate Tax Act is not contrary to the substance over form principle, etc.

(3) As to the claim

Article 115-2(8) of the Corporate Tax Act (amended by Act No. 9673 of May 21, 2009 and partially amended by Act No. 9763 of Jun. 9, 2009) provides that "No provision of paragraph (1) 2 and 3 shall apply to the income accruing from the transfer of land, etc. by December 31, 2010." However, according to Article 2 of the Addenda, "the amended provision of Article 55-2 shall apply to the first transfer after March 16, 2009" by providing that "the amended provision of Article 55-2 shall apply from the first transfer after March 16, 2009," and it does not apply to this case, since such amended provision does not affect the interpretation of the preceding case, or there is no ground to view the disposition of this case as affecting the tax reputation, the plaintiff's assertion related to the newly established provision shall not be accepted.

3. Conclusion

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