Suwon District Court 2010Guhap3955 (2010.09.02)

Early High Court Decision 2009Du2670 ( October 28, 2010)

land for non-business use which does not fall under the category of land

The disposition of this disposition is lawful on the premise that the Plaintiff falls under non-business land, and even if the actual status of the land falls under a site other than farmland, it constitutes non-business land. It is difficult to deem that there is a justifiable ground solely on the ground that the Plaintiff did not have been able to use the land from the time of acquisition to the time of acquisition and later

2010Nu31814 Revocation of Disposition of Imposing capital gains tax

Gangwon A

○ Head of tax office

Suwon District Court Decision 2010Guhap3955 Decided September 2, 2010

July 1, 201

August 19, 2011

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 107,199,210 against the plaintiff on April 1, 2009 by the defendant shall be revoked.

1. Quotation of judgment of the first instance;

The reasons to be stated in this decision are as follows, and this Court cites the reasoning of the judgment of the first instance, except for the part (Paragraph 3) to supplement the judgment of the first instance court or to additionally determine the new argument of the plaintiff in the trial of the first instance (Paragraph 2).

2. Parts in supplement of judgment of the court of first instance;

A. The plaintiff's assertion

1) Even though the amount the Plaintiff spent in relation to the instant land and the instant building, etc. is much more than the sale price of the said land, the Defendant, as a mechanically heavy taxation, violated the instant disposition, which is in breach of the principle of taxation and the principle of substantial taxation.

2) Since the Korea Gas Corporation used the instant land as a gas supply site for not less than 15 years, it was remarkably difficult to view the current status of the said land as farmland. On August 2003, 2003, the ○○○○-gu Office responded that the said land did not constitute farmland as a buffer green belt, and it was impossible for the Plaintiff to use it as the answer. Nevertheless, the first instance court’s determination that the said land was a non-business land without examining the actual status of the instant land was unlawful.

B. Determination

1) As to the plaintiff's claim 1

In full view of the following circumstances admitted by the evidence presented in the judgment of the first instance court, the instant disposition cannot be deemed to have violated the principle of able to impose taxation and the principle of substantial taxation, and thus, the Plaintiff’s ground of appeal cannot be accepted.

(A) The Plaintiff, as a real trader of the instant land, achieved a considerable amount of gains from transfer. In other words, the Plaintiff sold the instant land in his name in the public sale procedure of the Korea Gas Corporation, and transferred the land of this case to △△ Dong to Do-gu Seoul Special Metropolitan City. Even according to the details of the transfer income tax report filed by the Plaintiff to the Defendant, the Plaintiff purchased approximately KRW 50 million of the instant land and sold approximately KRW 350 million, thereby making the transfer difference to KRW 300 million.

(B) The costs of removing the building related to the instant land, and the financial interest, etc., alleged by the Plaintiff cannot be deemed as costs related to the instant land. The payment of all such costs is significant due to the Plaintiff’s purchase without accurately examining the use relationship under the laws and regulations on the instant land, buildings, etc.

(C) As alleged by the Plaintiff, an unexpected additional cost is incurred due to the limitation on the use of the land as alleged by the Plaintiff, and eventually, the entire land of this case is bound to be sold, and thus, a considerable economic loss is incurred in the process, it is only a matter to be resolved through the additional demand for necessary expenses related to the acquisition of the land of this case and the claim for damages against the Korea Gas Corporation, which

2) As to the plaintiff's ground of appeal No. 2

As properly stated in the judgment of the first instance court, the land in this case is categorized as the answer entered in the public register and is classified as the buffer green belt from around 1984 to the present date. In full view of the fact that it is impossible to use the buffer green belt for any purpose other than its original purpose of designation, but it is not possible to cultivate the buffer green belt according to its original purpose of use due to its land category without any special legal restrictions, the Defendant’s disposition of the land for non-business on the premise that the land in this case falls

Furthermore, even if the actual status of the land in this case is not farmland as alleged by the plaintiff, it shall be the land subject to separate aggregate of property tax or separate taxation under Article 182 (1) 2 and 3 of the Local Tax Act to be excluded from the land for non-business under Article 104-3 (1) 4 of the former Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007). However, considering that the land in this case is imposed global income tax from 2004 to 2005, and that the plaintiff has no business falling under Article 168-11 of the Enforcement Decree of the Income Tax Act during the period of possession of the land in this case, the land in this case is still a non-business land. Ultimately, the plaintiff's above-mentioned Chapter 2 of the Local Tax Act does not seem to be any mother or good reason.

3. Additional determination

A. The plaintiff's assertion

The land in this case is the land for non-business use under Article 83-5 (1) 12 of the Enforcement Rule of the Income Tax Act (other than the reasons in subparagraphs 1 through 11 after the acquisition of the land concerned, land not used for business due to justifiable reasons, such as changes in urban planning,

B. Determination

As properly explained in the judgment of the first instance court, the instant land is a buffer green belt, which the Plaintiff had been unable to use for purposes other than its original designated purpose prior to its acquisition, and the Plaintiff also became aware of such fact at the time of its acquisition. Furthermore, the Plaintiff cannot be deemed as a land available to the Plaintiff as an individual from the time of acquiring the instant land pursuant to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, solely on the ground that the Plaintiff had lawfully expropriated and used the instant land, which is a buffer green belt pursuant to the Act on Acquisition of and Compensation for Compensation for Land, etc. for such Land, etc. before its acquisition. It is difficult to view that the Plaintiff had justifiable grounds under the Enforcement Rule of the Income Tax Act on the sole ground that the Plaintiff purchased the instant land, etc. from the Korea Gas Corporation and

4. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.