Changwon District Court-2018-Gu Partnership-51773 ( October 16, 2019)

Examination-transfer-2017-0149 ( March 28, 2018)

The proviso of Article 168-6 of the former Enforcement Decree of the Income Tax Act that prescribes that the period of land ownership shall be calculated by the day is legitimate and effective.

In determining whether a non-business land falls under the category of land, the former Income Tax Act may determine the method of calculating the period in accordance with its own standard, and it cannot be readily concluded that it violates the Constitution or null and void on the ground that the period of ownership of the land subject to the special deduction for long-term holding

Article 104-3 of the Income Tax Act, the scope of idle land, and the standards for the period of idle land under Article 168-6

2019Nu10170 Revocation of disposition to impose capital gains tax

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○ Head of tax office

on October 24, 2019

on October 15, 2019

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 Defendant’s imposition of capital gains tax of KRW 589,702,726 against the Plaintiff on October 10, 2017 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this court's reasoning is as stated in the reasoning of the judgment of the court of first instance, except for the addition of the judgment on the matters asserted by the plaintiff in the court of first instance as stated in Paragraph (2). As such, the grounds for appeal by the plaintiff are cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (the grounds for appeal by the plaintiff are not significantly different from the allegations in the court of first instance, and the fact-finding and judgment of the

2. The addition;

A. The plaintiff's assertion

According to Article 168-6 (1) of the former Enforcement Decree of the Income Tax Act which was delegated by Article 104-3 (1) of the former Enforcement Decree of the Income Tax Act, if the period of possession of land subject to special deduction for long-term possession is five years or more, the period (i.e., the period corresponding to the land for business) which was not the land for non-business in order to be subject to special deduction for long-term possession shall fall under one of three years or more immediately preceding five years prior to the date of transfer (i.e., the period of not less than three years) or the period of not less than two years prior to the date of transfer (b) or the period of not less than 60/100 of the ownership period of the land (c). Such provisions of the former Enforcement Decree of the Income Tax Act are contrary to the purpose of legislation of the former Income Tax Act which intends to protect the long-term holder. Thus, it should be deemed that the former Enforcement Decree of the Income Tax Act should be null and void without such special deduction for long-term possession for 3 years or longer than 20 years.

B. Determination

Article 104-3 (1) of the former Income Tax Act stipulates the scope of the non-business land subject to the exclusion of the special long-term holding deduction as the land subject to the separate taxation or separate taxation of property tax under Article 106 (1) 2 and 3 of the Local Tax Act, and delegates the term of "period" to the Presidential Decree in determining the land subject to the above land. The establishment of the term is because it is a national policy task to comprehensively consider various circumstances, such as changes in national economic conditions, the current status of the use of national real estate, the situation of real estate market, and the economic effects that can arise through the application of the special deduction for long-term holding, and it is difficult to say that there is a considerable discretion in the delegated administrative agency, and it is difficult to deem that there is a duty to set various kinds of standards as argued by the plaintiff, and that there is a special reason to further protect the long-term holders such as the plaintiff.

Therefore, it cannot be readily concluded that Article 168-6 subparagraph 1 of the former Enforcement Decree of the Income Tax Act, which was delegated by Article 104-3 (1) of the former Income Tax Act, stipulates that the ownership period of the land subject to the special long-term holding deduction is limited to three cases as above.

3. Conclusion

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