Cho High 209 Before 2815 (209.03)

Definitions of the date of incorporation into residential area, etc.

The date of incorporation into a residential area, etc. shall mean the date when the authority designating industrial complexes approves an implementation plan and publicly notifies it, and it shall not mean the time when such public notice takes effect.

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 capital gains tax of KRW 25,164,040 for the Plaintiff on April 14, 2009 shall be revoked.

1. Details of the disposition;

A. On May 8, 1939, the Plaintiff acquired a 363-3 square meters prior to AAri 363-3 square meters prior to 367-13 square meters prior to 367-13 square meters prior to the same Ri, 691 square meters prior to 367-14 square meters prior to the same Ri, 381-4 square meters prior to the same Ri, 524-5 square meters prior to the same Ri, 248 square meters prior to the same Ri, 41-1 forest land of the same Ri, 27,372 square meters prior to the same Ri, and on October 14, 2005, transferred each of the above lands to Samsung Electronic Co., Ltd.

B. In making a preliminary return of capital gains tax on or around December 2, 2005, the Plaintiff: (a) as in each of the above lands, the Plaintiff: (b) 10,262,832 won calculated by subtracting the reduced or exempted amount of capital gains tax from 197,806,876 won to 363-3, 363, 367-13, 367-13,279 square meters of the same Ri; (c) and (d) 381-4, and 502 square meters before 381-4, 2005 (hereinafter “instant land”) from each of the above lands for eight years or more; (b) on the ground that the capital gains tax included in the instant land in the general urban area constituted reduction or exemption; and (c) made a preliminary return on the said amount as capital gains tax for 2005, 197,403,730 won, which was applied as of May 31, 2005.

C. In calculating the reduced or exempted tax amount for self-farmland on April 14, 2009 by applying Article 66 of the former Restriction of Special Taxation Act (amended by Act No. 7839 of Dec. 21, 2005), the Defendant calculated the reduced or exempted tax amount as 78,393,039 won by applying the officially announced land price as of June 30, 2004 before calculating the reduced or exempted tax amount as 125,426,877 won by calculating the reduced or exempted tax amount as 78,393,00 won by applying the officially announced land price as of May 28, 2005, not the date of incorporation into the industrial area as of June 21, 2005, and imposed the capital gains tax of 25,164,047 won for the remainder after deducting the already paid tax to the Plaintiff (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on July 13, 2009, but the Tax Tribunal dismissed the appeal on September 3, 2009.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence No. 1, Eul evidence No. 2, Eul evidence No. 4, Eul evidence No. 5 (including each number), the purport of the whole pleadings

2. Determination on the legitimacy of each of the dispositions of this case

A. The plaintiff's assertion

According to Article 31 (1) of the National Land Utilization and Planning Act (amended by Act No. 9442 of Feb. 6, 2009), the decision of the urban management planning becomes effective five days after the date of public notice under Article 30 (6) of the same Act. Thus, the date of incorporation of the general industrial area of the land of this case shall be deemed June 2, 2005, and accordingly, the transfer income tax should be determined by applying the officially announced value as of May 31, 2005. However, the defendant's disposition of this case, which calculated the transfer income tax to be reduced or exempted by applying the officially announced value as of June 30, 2004, considering the date of incorporation as the date of public notice as of May 28, 2005.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) The proviso of Article 69(1) of the former Restriction of Special Taxation Act provides that even if the land is subject to reduction or exemption of capital gains tax for at least eight years, where the land is incorporated into a residential area, commercial area, or industrial area under the National Land Planning and Utilization Act (hereinafter “residential area, etc.”), the tax amount equivalent to 100/100 of the transfer income tax shall be reduced or exempted only on the income prescribed by the Presidential Decree accrued until the date of incorporation into a residential area, etc. under the National Land Planning and Utilization Act. In this context, “the date of incorporation into a residential area, etc.” refers to the date of announcement by the authority designating industrial complexes after approval of the implementation plan (see Supreme Court Decision 2003Du4304, Dec. 9, 2004). It does not mean

(2) In full view of the above facts of recognition, Gap evidence No. 4 (including provisional number), and the above legal principles, Chungcheongnam-do Governor shall approve and publicly announce an implementation plan for the second general local industrial complex of Cheongnam-do on May 28, 2005 pursuant to the National Land Planning and Utilization Act, which was enacted on May 28, 2005, thereby recognizing that the land of this case was incorporated into a general industrial area on May 28, 2005. In applying the provision on reduction and exemption of capital gains tax for 8 years, it is stipulated that capital gains tax shall be reduced or exempted only for the farmland incorporated into a residential area, etc. under the National Land Planning and Utilization Act by the date of incorporation of the relevant land into an urban area on May 28, 2005. Therefore, in applying the provision on reduction and exemption of capital gains tax in this case, it shall be deemed that the land of this case was incorporated into an urban area on May 28, 2005, the officially announced land price of 2005.6.26.

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.