Whether it falls under non-business land

The evidence submitted, however, that it is not a non-business land due to the use of the land for depository use, shall not be trusted.

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 cancellation of the part exceeding KRW 31,360,520 out of the capital gains tax of KRW 103,167,90 for the year 200B against the Plaintiff on August 18, 200.

1. Circumstances of the disposition;

가. 원고는 1989. 7. 15.경 전북 @@시 교통 314-20 전 1,269㎡(2008. 1. 30. '주유소 용지'로 지목이 변경되었다, 이하 '이 사건 제1토지'라 한다) 및 전북 @@시 교동 314-232 전 257㎡(2008. 1. 30. '도로'로 지목이 변경되었다, 이하 '이 사건 제2토지'라 한다)를 대금 56,329,352원에 매수한 다음 1989. 8. 24. 전주지방법원 @@등기소 접수 제17248호로 이 사건 각 토지에 관하여 소유권이전등기를 경료하였다.

B. On April 27, 2007, the Plaintiff sold each of the instant lands to Fo-il Co., Ltd. with the purchase price of KRW 231 million, and completed the registration of ownership transfer on January 30, 2008 due to the sale on January 16, 2008.

C. On August 18, 2008, the Defendant issued a disposition imposing and notifying capital gains tax of KRW 103,167,900 for the year 2008 by applying 60% of the heavy tax rate under Article 104(1)2-7 of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same) on the ground that each of the instant lands constitutes non-business land (hereinafter the “instant disposition”).

D. The Plaintiff filed an objection against the instant disposition on November 5, 2008, but was dismissed on December 5, 2008. The Plaintiff filed an appeal with the Tax Tribunal on February 11, 2009, but the said appeal was dismissed on June 17, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, Eul evidence 1 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① From March 15, 2004 to March 15, 2006, KimCC leased each of the instant land and used it as a storage for storing agricultural machinery. Since DoD 206 to November 14, 2006 leased each of the instant land and used it as a storage for storing agricultural machinery, the disposal constitutes the land for storage, etc. under Article 168-11 (1) 7 of the Enforcement Decree of the Income Tax Act during the period during which KimCC and westD used it as a storage for storing agricultural machinery. (2) Since KimA leased each of the instant land from November 15, 2006 to September 6, 2007 to use it as a reticte sales station, it constitutes the land for which the rate of 168-11 (1) 12 of the Enforcement Decree of the Income Tax Act and Article 83-3 (14) of the Enforcement Rule of the Income Tax Act is more than 0-7 percent of the total income amount of each of the instant land.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) In imposing capital gains tax, Article 104-3 (1) 4 of the former Income Tax Act provides that farmland, forest land, and land other than stock farms shall, in principle, be deemed land for non-business use, and the tax rate of 60% shall be applied to such land, but the land prescribed by Presidential Decree as having considerable grounds for deeming that it is directly related to residence or business in consideration of the situation of land use, etc. shall be excluded from the land for non-business use. Accordingly, Article 168-11 (1) 7 of the Enforcement Decree of the Income Tax Act provides that "land for storage, field storage, storage, etc. separately installed and used for the purpose of storing and managing the goods" and Article 104-3 (1) 12 of the same Act provides that "land for manufacturing business of blocks, stone and soil pipes, land for landscaping business, land for private teaching institutes teaching automobile maintenance, heavy equipment maintenance, heavy equipment operation, or land similar thereto, the ratio of income amount for the value of the land exceeds the ratio prescribed by Ordinance of the Ministry of Strategy and Finance and Finance.

However, from September 7, 2007 to January 30, 2008, the FIE used each of the instant land as a site for the new construction of oil station, and there is no dispute between the parties that the instant land falls under the land for business for the above period, and the FIE constitutes the storage under Article 168-11 (1) 7 of the Enforcement Decree of the Income Tax Act during the period when KimCC and DoD used each of the instant land, and thus, it is examined whether the instant land was excluded from the non-business land during the above period, and whether it falls under the non-business land under Article 168-11 (1) 12 of the Enforcement Decree of the Income Tax Act during the period when KimA used each of the instant land.

(2) Whether KimCC and SDR used each of the instant lands as land for storage, etc. under Article 168-11(1)7 of the Enforcement Decree of the Income Tax Act

As shown in the Plaintiff’s assertion, there is evidence that the Plaintiff leased each of the instant lands to KimCC on February 26, 2004, with a real estate lease agreement (Evidence 6-1), from March 15, 2004 to March 15, 2006, that the Plaintiff used each of the instant lands for the display and storage of agricultural machinery and from March 15, 2006, and from April 1, 2006 to November 14, 2006, a letter of confirmation of SDR (Evidence 7-2) with the content that the Plaintiff used each of the instant lands for the display and storage of agricultural machinery (Evidence 7-2).

그러나 을 제2호증의 1 내지 4, 제4호증, 제6호증의 l의 각 기재에 변론 전체의 취지를 종합하면 ① 김CC은 2003년경부터 @@시 KK동 26-1에서 광활농기계수리센터를 운영해온 사실, ② 서DD은 1999년경부터 @@시 KK동 30-14에서 명일기공이 라는 농기계제조업체를 운영해오고 있는 사실, ③ 김CC과 서DD은 '2005. 7.경부터 원고로부터 이 사건 각 토지를 임대차기간 1년, 사용료 250만 원에 임차하였고, 임대 차기간 1년이 만료된 이후에는 김CC은 더 이상 임대차계약을 체결하지 아니하였고, 서DD이 원고에게 200만 원을 지급하고 이 사건 각 토지를 2006. 11.까지 사용하였다. 김CC과 서DD의 사업장에도 충분한 여유 공간이 있어 농기계를 보관만 할 목적이었다면 이 사건 각 토지를 임차할 필요가 없었고, 다만 김CC과 서DD의 사업장이 교통량이 많지 않은 편도 1차로 시골길 옆에 위치하고 있어서 왕복 4차로 도로에 인접하고 있는 이 사건 각 토지에서 농기계를 전시하여 판매할 목적으로 임대차계약을 체결하였으며, 이 사건 각 토지를 임차한 다음 플랜카드 등을 설치하고 농기계 홍보를 하였다. 원고가 제출한 확인서(갑 제7호증의 1, 2)는 이장의 부탁으로 작성해 준 것이 다. 원고가 제출한 부동산임대차계약서(갑 제6호증의 1)는 임대차계약 체결 당시에 작성하였던 계약서가 아닌 것 같다'고 진술하고 있는 사실을 인정할 수 있고, 이에 비추어 보면 원고가 제출한 위 증거들을 그대로 믿을 수 없고 달리 원고의 주장을 뒷받침할 만한 증거가 없으며, 오히려 검CC과 서DD은 이 사건 각 토지를 농기계 전시 및 판매장으로 사용하였다고 할 것이다.

Therefore, since KimCC and SDR do not constitute a case where each of the lands of this case was separately installed and used for the purpose of storing and managing the goods, the plaintiff's assertion that each of the lands of this case falls under storages prescribed in Article 168-11 (7) of the Enforcement Decree of the Income Tax Act during the period in which KimCC and SDR used each of the lands of this case and it should be excluded from non-business land is without merit.

(3) Whether KimA's use of each of the instant land constitutes the land stipulated in Article 168-11 (1) 12 of the Enforcement Decree of the Income Tax Act during the period of use of each of the instant land, and thus is excluded

According to the evidence No. 6-2, Evidence No. 7-3, and evidence No. 9, the plaintiff prepared a lease agreement with KimA on Nov. 15, 2006 that the land of this case is leased to March 16, 2009 between the deposit money of 5 million won and the deposit of 5 million won, and KimA used each of the land of this case as aggregate and non-place soil site from Nov. 15, 2006 to Sept. 16, 2007. The fact that KimA submitted a written confirmation that "the land of this case was used as aggregate and non-place soil site from Nov. 15, 2006 to Sept. 2, 2007." The fact that KimA reported the tax base (income amount) on Mar. 2, 2007 to Jun. 30, 2007 to pay the tax amount of 5,209 won and 455.79.797

However, under the following circumstances, Gap evidence 8-3, Nos. 5, 7, 9-2 and the overall purport of the arguments, i.e., ① KimA shall enter into a trade name only on March 2, 2007, ② business type as cement, aggregate, bricks, bricks, and bricks retail business; ② KimA made a closure report on June 30, 207; the plaintiff prepared a lease agreement between 00,000 won and 50,000 won as deposit and 20,000 won as deposit and 30.0,000 won as deposit and 16.0,000 won as deposit and 20,000 won as deposit and 20,000 won as deposit and 20,000 won as deposit and 16.0,000 won as deposit and 3.0,000 won as deposit and 20,000 won as deposit and 20,000 won as deposit and 207.

Therefore, during the period of use of each of the instant lands by KimA, the Plaintiff’s assertion that each of the instant lands falls under the land stipulated in Article 168-11(1)12 of the Enforcement Decree of the Income Tax Act and should be excluded from the non-business land is without merit (this part of the Plaintiff’s assertion is also the same for the period of November 15, 2006 to September 6, 2007, on the ground that each of the instant lands falls under the land stipulated in Article 168-11(1)12 of the Enforcement Decree of the Income Tax Act, on the ground that the said period of use and FFM falls under the land stipulated in Article 168-1(1)12 of the Enforcement Decree of the Income Tax Act, and that each of the instant lands falls under the non-business land during the period of use of each of the instant lands as the site for the new construction of oil stations, even if the period of use of each of the instant lands

(4) Sub-determination

Therefore, even if Foday used each of the instant lands as a site for new construction of oil stations from September 7, 2007 to January 30, 2008, and the instant lands were excluded from non-business land during the above period, each of the instant lands constitutes non-business land during the period prescribed in Article 104-3 (1) of the Income Tax Act and Article 168-6 of the Enforcement Decree of the Income Tax Act. Thus, the Defendant’s disposition of this case is lawful by applying the tax rate of 60% on non-business land (On the other hand, the Defendant asserted that each of the instant lands falls under non-business land as provided in Article 104-3 (1) 1 (a) of the former Income Tax Act because the owner of the instant land is not residing in the farmland or is not cultivated by himself, and it is difficult to recognize each of the instant lands as farmland for non-business purpose because it was used as farmland for non-business purpose due to the change of land category into the site and category of aggregate, and each of the instant land was actually owned by the Plaintiff.

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.