Cho High Court Decision 2010Du2269 ( October 08, 201)

The amount of income used for the parking lot business is not less than 3/100 of the land value, and it falls under the non-business land.

Although land is subject to general aggregate taxation under the Local Tax Act and is used for the business of operating a parking lot after acquiring the land, the amount of income does not exceed 3/100 of the value of the land, and the standard ratio constitutes land for non-business use and it cannot be seen as invalid provisions beyond the scope of delegation by the parent law.

Scope of other land used for the business under Article 168-11 of the Enforcement Decree of the Income Tax Act

2011Gu 11016 Revocation of Disposition of Imposing capital gains tax

XX

Head of Yeongdeungpo Tax Office

October 25, 2011

November 22, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing KRW 361,854,320 on the Plaintiff on December 1, 2009 shall be revoked.

1. Details of the disposition;

A. On November 25, 1976, the Plaintiff acquired and retained the Plaintiff’s share out of the instant land in common (1/3 of each share of the Plaintiff, YellowA, and SB) with YellowA, YellowB (hereinafter “instant land”) in Gangdong-gu Seoul Metropolitan Government, 000 W, and transferred it to Yellow on December 11, 2007.

B. On February 29, 2008, the Plaintiff applied the general tax rate (36%) by regarding the instant land as land for business, and reported KRW 203,612,590 to the Plaintiff’s interest (1/3 equity) transfer in 2007.

C. However, on December 1, 2009, the Defendant applied the heavy tax rate (60%) to the Plaintiff as land for non-business use, and determined and notified the increase of KRW 361,854,320 to the transfer income amount for the year 2007 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3 (each number distribution), Eul evidence No. 1, and the purport of an alternative claim No. 1

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff asserts that the instant disposition is unlawful for the following reasons:

① On the instant land, there were many unauthorized buildings, and the instant land owned by YellowA and SeoB, a family member of the Plaintiff, was used as the land annexed to the instant building on the 453-2 square meters and 314 square meters (hereinafter referred to as “second-party land”), such as 00-0 square meters and 472 square meters (hereinafter referred to as “first-party land”) adjacent to the instant land, Gangdong-gu Seoul Metropolitan Government, Gangdong-gu, which was owned by the Plaintiff’s family member, and operated the parking lot business using part of the instant land.

Considering these circumstances, the land of this case does not constitute the land for non-business use under Article 104-3 of the Income Tax Act (main assertion).

(2) According to the provisions of Article 168-11(1)2 (c) of the Enforcement Decree of the Income Tax Act, and Article 83-4(6) of the Enforcement Rule of the Income Tax Act, the ratio of the amount of income for one year to the value of land owned by a person operating a parking lot operating business and used as an off-road parking lot under the Parking Lot Act shall be at least 3/100. Thus, Article 83-4(6) of the Enforcement Rule of the Income Tax Act uniformly determines whether the land for a parking lot falls under a non-business land on the basis of the ratio of the amount of income for one year to the value of the land without considering justifiable grounds for which the land for a parking lot is not provided

(b) Related statutes;

Attached sheet and conflict.

(c) Fact of recognition;

(1) On November 25, 1976, the Plaintiff, the YellowA, and the WesternB acquired the instant land as a joint (1/3 shares each), and on March 7, 2003, the YellowA’s shares (1/3 shares) were transferred (based on donation) to the Yellow on March 7, 2003, and on May 29, 2007, the WesternB’s shares (1/3 shares) were transferred to the Kim E (based on a division) and the Plaintiff’s shares (1/3 shares) transferred to the CC on December 11, 2007.

(2) On March 2, 1976, Nos. 1 and 2 were jointly acquired (each equity) on March 2, 1976, and Nos. 1 and 1 and 2 were jointly acquired (one-2). On March 7, 2003, the Yellow AA share (one-2) of Nos. 1 and 2 was transferred toCC on March 7, 2003, and the Yellow BB’s share (1/2) was transferred to Kim E on May 29, 2007 (the cause of inheritance).

(3) The second land is designated as a parking lot improvement district for a general commercial area, and there is a building of neighborhood living facilities (area 94.37 square meters) and automobile-related facilities (area 4.05 square meters) above.

(4) Meanwhile, from 1997 to 2007, the instant land was classified into land subject to general aggregate taxation under Article 182 of the Local Tax Act. The Plaintiff operated the parking lot business from July 2, 1997 to June 25, 2007 from the instant land, and thereafter, the lessee KimF operated the parking lot business.

(5) The amount of income during the parking lot business in the instant land was not completed by the Plaintiff at 1% of the land value.

[Grounds for recognition] The above evidence and Gap evidence Nos. 4 through 9. The purport of the whole pleadings

D. Determination

(1) As to the allegation No. 1

According to Article 104-3 (1) 4 (c) of the Income Tax Act, Articles 168-6 and 168-1 (1) 2 (c) of the Enforcement Decree of the Income Tax Act, and Article 83-4 (6) of the Enforcement Rule of the Income Tax Act, in cases of land for parking lots, where the possession period of land is five years or more, the period exceeding two years from the five years immediately preceding the transfer date, the period exceeding one year from the three years immediately preceding the transfer date, and the period exceeding one year from the three years immediately preceding the transfer date, and the period exceeding 20/100 of the land, or the ratio of the amount of income for one

In this case, according to the above facts, the land in this case constitutes the land subject to general aggregate taxation under Article 182 of the Local Tax Act, and the land in this case is used for the business of operating the parking lot after the Plaintiff acquired the land in this case, but the amount of income does not exceed 3/100 of the value of the land in this case, so the land in this case constitutes the land for non-business use.

(2) As to the above ② argument

Article 168-11 (1) 2 (c) of the Enforcement Decree of the Income Tax Act provides that "the rate prescribed by Ordinance of the Ministry of Strategy and Finance as provided by Ordinance of the Ministry of Strategy and Finance" refers to 3/100 of the land value, which is owned by a person operating a parking lot operating business, excluding the land which is used as an off-road parking lot under the Parking Lot Act and the ratio of the amount of income for one year to the value of the land is not less than that provided by Ordinance of the Ministry of Strategy and Finance, and as a result of its inauguration, the "ratio provided by Ordinance of the Ministry of Strategy and Finance" refers to 3/100. The Enforcement Rule of the Income Tax Act provides that the ratio of the amount of income of the land for the parking lot shall be 3/100 of the land value considering the return of the commercial building upon delegation by the Income Tax Act and its Enforcement Decree, and such ratio shall be determined within a reasonable scope by the Ministry of Strategy and Finance,

In this case, according to the results of the fact-finding on the above evidence, and the court's fact-finding on the Ministry of Strategy and Finance, the Ministry of Strategy and Finance set the criteria for whether the land used for the parking lot is used (the ratio of the amount of income to the land value) according to the delegation of the Income Tax Act and the Enforcement Decree thereof, considering the return of the commercial building's profit. In the case of the land used for the parking lot, the Ministry of Strategy and Finance set the standards for whether the land used for the parking lot is used for the parking lot at a lower rate than the return of the commercial building's profit. Even if there are circumstances that the return of the commercial building

Therefore, Article 83-4 (6) of the Enforcement Rule of the Income Tax Act cannot be said to be invalid beyond the scope of delegation by the parent law.

E. Sub-committee

Since the land of this case constitutes land for non-business use, the disposition of this case, which was reported to that effect, is legitimate.

3. Conclusion

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