Cho Jae-2017-Mining-363 (2017.05.02)

This case's land is not subject to reduction or exemption for the lapse of eight years, even if it was incorporated into a parking lot or road facility after it was designated and announced as a residential area.

Even if the instant land was included in a parking lot or road facility after it was designated and publicly announced as a residential area, it constitutes still a residential area, and thus, it is not possible to apply the provision on reduction or exemption for a period of eight years for capital gains accrued after it was incorporated into a residential

Article 69 of the Restriction of Special Taxation Act

Revocation of imposition of capital gains tax

AA

BB Director of the Tax Office

2018.03.28

2018.04.04

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On November 29, 2016, the defendant's rejection disposition of capital gains tax correction (hereinafter referred to as "disposition of this case") against the plaintiff on November 29, 2016 is revoked.

1. 이 사건 처분이 이루어진 경위(☞ 다툼 없는 사실)

A. Before the subdivision, ○○○○○○○○-gun ○○○○○○○○○-gun 00,000 square meters was originally owned by the Plaintiff. Around June 2016, the said land prior to the subdivision was divided into KRW 000-0 square meters per annum, ② 000-0 square meters per annum, ② 000 square meters per annum, ③ 000-00 square meters, ④ 000 square meters per 000 square meters, ④ 4000-00 square meters, which was divided on June 23, 2016, and KRW 000-00 square meters per annum, which was divided on June 23, 2016, and KRW 00-00 square meters per annum, and KRW 00-000-00,000 per annum (hereinafter collectively referred to as “instant land for convenience”): Each of the grounds for the registration of ownership transfer had been registered (hereinafter referred to as “the instant land for public works, etc.”).

B. Thereafter, the Plaintiff reported and paid KRW 00,000,000, calculated by applying the exempted tax only to the transfer income accrued until the date of incorporation into the residential area of the instant land (hereinafter referred to as “the instant special case”) pursuant to the proviso of Article 69(1)1 of the former Restriction of Special Taxation Act (amended by Act No. 14390, Dec. 20, 2016) (amended by Act No. 14390, Dec. 20, 2016) pursuant to the said special case and Article 66(7) of the Enforcement Decree of the same Act (hereinafter referred to as “the instant special case”).

C. However, on October 4, 2016, the Plaintiff asserted that capital gains tax on self-arable farmland should be exempted for transfer income accrued after the land was incorporated into a residential area. On October 4, 2016, the Plaintiff filed a request for correction seeking refund of KRW 16,220,550 of capital gains tax for the year 2016, which was already paid to the Defendant, and on November 29, 2016, the Defendant issued the instant disposition against the Plaintiff on November 29, 2016 (the Plaintiff’s request for adjudication on the instant disposition was not accepted on May 2, 2017).

2. Judgment on the issue

A. The Plaintiff, as the cause of the instant claim, directly cultivated and transferred the instant land for at least eight years after the Plaintiff acquired it, - even if the instant land was additionally announced as a parking lot on March 20, 2015 after being designated and publicly announced as Class 1 general residential area on July 16, 2010 ( even if the instant land falls under a "residential area" under the special provisions of this case, in light of the principle of fair taxation or the legislative intent of the special provisions of this case), - The Plaintiff asserts to the effect that it should be exempted from the entire transfer income tax of the instant land in accordance with the special provisions of this case, and sought the revocation of the instant disposition.

나. 먼저, 이 사건 토지가 2010년 제1종 일반주거지역으로 지정되었다가 2015년에 이르러 도・시・군 관리계획에 따라 도로・주차장으로 따로 지정되었더라도, 이 사건 토지는 이 사건 특례규정에서 말하는 "주거지역"에 여전히 해당하는 것으로 보아야 하고, 이 사건 특례규정의 문언상 '주거지역으로 편입된 후 발생한 양도소득에 대하여는 이 사건 특례규정이 적용될 수 없음'이 분명하므로, 이와 다른 전제에 기초한 원고의 주장은 받아들일 수 없고, 다음으로, 비록 원고가 이 사건 토지가 제1종 주거지역으로 지정・고시된 사정과 무관하게 이 사건 토지 위에서 오랜 기간 동안 줄곧 경작하였더라도, 공평과세의 원칙이나 이 사건 특례규정의 입법취지 등을 내세워 이 사건 토지의 양도에 따른 양도소득세를 면제하는 것은 오히려 조세 법률주의의 원칙에 어긋나는 셈이 되므로(∵조세법규의 해석은 법문대로 해석하는 것이 원칙인 데다가, 이른바 특혜규정은 보다 엄격하게 풀이하여 적용하는 것이 조세공평의 원칙 등에 비추어 타당하기 때문임), 이 점을 다투는 원고의 주장도 받아들일 수 없다.

C. Ultimately, the Plaintiff cannot accept all the arguments that the cause of the instant claim lies in the Plaintiff’s failure to accept, and there is no other ground for illegality of the instant disposition.

3. Conclusion

Therefore, we cannot accept the Plaintiff’s claim of this case.