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(영문) 서울고등법원 2018.09.19 2018누50194
양도소득세부과처분취소
Text

1. The plaintiff's appeal is dismissed.

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

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning of the judgment of the court of first instance, such as the acceptance of the judgment, is as follows: (a) adding “acquisition by inheritance” in the front of “Gwanju-si” in the second 3 parallel of the judgment of the court of first instance; (b) modifying “resident area” in the fifth 9 parallel of the judgment to “urban area”; and (c) supplementing or adding the judgment as stated in the reasoning of the judgment of the court of first instance, except for supplementing or adding it as stated in the following two, thereby citing it as it is in accordance with Article

2. Supplementary and additional Plaintiff asserts as follows.

After acquiring the key land, the Plaintiff continued to reside in the location of the land, and transferred it.

The key land is that was incorporated into an urban area (commercial area) according to the decision of the district unit planning zone, which was designated as a special planning zone pursuant to the guidelines for the establishment of district unit planning, and development activities such as construction alone have become impossible, so it is excluded from the non-business land and subject to special long-term holding deduction as stipulated in Article 104-3(2) of the former Income Tax Act and Article 168-14(1)1 of the former Enforcement Decree

Therefore, the part that excluded the special long-term holding deduction for the land at issue in the instant disposition, i.e., the part that included the 255,461,94 won in the disposition rejecting capital gains tax for the year 2014, should be revoked.

As determined in the first instance judgment cited by this court, the key land is not only the land category on the public register, but also the farmland was cultivated as farmland at the time of transfer. Thus, even if construction, etc. was restricted by a district unit planning zone decision, it is not prohibited or restricted to use or cultivate as farmland, and it does not constitute “land, the use of which is prohibited or restricted in accordance with the relevant statutes” under Article 104-3(2) of the former Income Tax Act and Article 168-14(1)1 of the former Enforcement Decree of the Income Tax Act.

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