early 2012 Heavy0913 ( November 19, 2012)

disposition imposing capital gains tax by deeming forest land as land for non-business use is legitimate;

In order that forest land falls under the land for business, it shall be actually under commencement after obtaining authorization of the forest management plan pursuant to the relevant statutes, and when the submitted data are considered, it is merely a plan to conduct future forest management, but it is difficult to regard the authorized fact as actually conducting the commencement of the business, and there is no error of disposition imposing capital gains tax.

Scope of land for non-business under Article 104-3 of the Income Tax Act

2013Gudan117 Revocation of Disposition of Imposing capital gains tax

It can not be seen that there was an implementation of the forest management plan according to the authorization for modification.

(11) The concept and scope of the land subject to the object of separate taxation are necessarily inconsistent.

In full view of the fact that the Plaintiff’s evidence submitted by the Plaintiff does not raise an objection.

It is not enough to recognize that the forest of this case was commenced in accordance with the plan authorized to do so, and otherwise recognize it.

there is no evidence to prove that there is no such evidence.

(C) The Plaintiff asserts that the Defendant’s interpretation of the requirements for the land for business purposes requires the additional requirements that do not require the legal text without any legal basis. However, other than obtaining authorization of the forest management plan to obtain the special long-term holding deduction for the forest land of this case.

Inasmuch as the requirement for the implementation of a forest management plan is essential to determine whether to recognize the land for business, the Plaintiff’s assertion on this part is rejected.

E. Sub-decision

According to the above, in the case of OOri No. 28-10 and 12, among the forest of this case, the forest of this case shall be deemed to be the starting point according to the forest management plan on April 9, 2009, and in the case of OOri No. 28-5 and 7, the specific starting point and starting period cannot be confirmed. Thus, the forest of this case shall be deemed to be the land of this case for which the period exceeding two years immediately before the transfer date stipulated in Article 168-6 of the former Enforcement Decree of the Income Tax Act as stated in the attached Form for the period owned by the plaintiff (in the case where the ownership period of land is at least five years), the period exceeding five years immediately before the transfer date as stipulated in Article 168-6 of the former Enforcement Decree of the Income Tax Act, the period exceeding one year immediately before the transfer date, and the period exceeding 20/100 of the possession period of the land. Thus, in calculating the transfer income tax of this case

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

IsaA

Head of Central Tax Office

April 9, 2014

May 21, 2014

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax OOOO on November 1, 201 is revoked.

1. Details of the disposition;

A. The plaintiff transferred the ownership transfer registration of 3/4 shares of 00 (hereinafter referred to as "O's land") of 28-5, 7, 8, 10, 12 and 16 to 300 O's O's O's O's O's O's O's O's O's O's O's O's O's 23 June 2008, but all this decision stated O's O's O's O's O's O's 28-5, 7, 8, 10, 12 and 16 to 300 O's 200 O's 300 O's O's 2000 O's 30.6.30 O's 200 O's 200 O's O's 2030 O's 30.30

D. As to the transfer of this case on June 23, 2010, the Plaintiff scheduled the special long-term holding deduction of the transfer income tax amount OOOO directors from the transfer income amount OOO directors, acquisition value OOO directors, and other necessary expenses OOO directors and paid in installments (the subject of the special long-term holding deduction is four parcels of land in this case, which are four parcels of land in which the subject of the special long-term holding deduction is the land in this case; hereinafter referred to as “the forest in this case”).

E. As the Plaintiff’s above preliminary return did not meet the criteria for exclusion from forest land or non-business land in the trial with the approval of the forest management plan, the director of the Central Regional Tax Office ordered the Defendant to dispose of the said preliminary return by excluding special long-term holding deduction.

F. On November 1, 2011, the Defendant excluded the special long-term holding deduction with respect to the transfer of the instant case to the Plaintiff, and issued the disposition of imposition of the OOO of the capital gains tax belonging to the year 2010 (hereinafter “instant disposition”).

G. On January 31, 2012, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but received a dismissal ruling on November 19, 2012.

[Reasons for Recognition] Facts that there is no dispute between the parties, Gap evidence Nos. 1 through 3 (including paper numbers), Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) At the time of obtaining authorization on the instant forest management plan with respect to the instant forest (four parcels), the time of obtaining authorization on the said forest management plan shall be deemed the Plaintiff, and the two except the Kim Gyeong-gi, who was registered as the owner due to the error of business by the administrative

(2) At the time of approval on November 22, 2007, at which the Plaintiff had been seeking natural childcare forest business, it should be deemed that the Plaintiff had already been in the commencement of the instant forest project.

(3) Around December 2007, the Plaintiff installed various facilities, including vehicle access paths, for natural infant care forest trial business. Around April 2008, the Plaintiff was engaged in felling work by planting trees.

(4) The commencement of a forest project according to the authorization of the forest management plan does not necessarily mean that the forest project performance is carried out every ten years, but it is sufficient that the forest project is carried out according to the forest management plan. The meaning of the commencement of the forest project is not necessarily required to be narrowly interpreted because the felling of standing timber, etc. can be carried out at will, not necessarily required to be reported or permitted. (5) The meaning of the forest project in the commencement of a forest project pursuant to the contents of the plan without cancellation of the authorization of the plan within the original forest management plan. It is sufficient that the actual status of the forest is in the forest project necessary for the protection and fosterage of forests,

(6) As alleged by the Defendant, the circumstance that there is a specific performance result in 28-5 and 7 of the instant forest, or that the specific performance date of the instant forest is around April 2009 by the specific performance date of the project is about 28-10 and 12 of the instant forest is in violation of the principle of no taxation without any legal basis for the interpretation of the requirements for the land excluded from the land for non-business. Accordingly, the instant forest is subject to special deduction for long-term possession as land for business under the Income Tax Act.

Therefore, the disposition of this case that excluded the special long-term holding deduction is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

The following facts may be acknowledged if each of the above evidence is added to Gap evidence 4-1, 2, Eul evidence 3-1, and 2:

(1) On November 22, 2007, the O market approved the forest management plan (hereinafter referred to as the "approval of this case") with the purport that the forest owner is the priority point for the natural forest care care care care care care care care program (hereinafter referred to as the "forest owner"). (2) On January 22, 2007, the Plaintiff applied for the authorization of this case to the mayor of this case: the owner of the forest non-party 1, non-party 1, non-party 2: the OB forest cooperative head: the OB forest cooperative head: the forest cooperative head from January 1, 2008 to December 31, 2017; the forest location: the OB forest manager: the forest forest manager; the forest forest manager; the forest manager; the forest manager; the forest manager; the forest manager; the forest manager; the forest manager; the forest manager; the forest production project; and the forest production project from 200 to 31,209.

(4) After obtaining the instant authorization for modification, the Plaintiff reported the forest project (e.g., removal of obstacles to the auxiliary afforestation area) related to OOrisan 28-10, and 12 among the forest of this case pursuant to the forest management plan authorized by the OO Mayor.

(5) On April 9, 2009, the OO market accepted the above report. In accordance with the provisions related to the Enforcement Decree of the Local Tax Act, the Plaintiff paid the license tax and completed the business pertaining to the repair details by April 30, 2009, and notified the Plaintiff of the receipt of the " acceptance of the forest management plan" that the completion of the work should be submitted by April 30, 2009, along with the background prior to the work and the warning photographs. (6) On May 8, 2009, the Plaintiff submitted to the OOO mayor the completion of the forest management plan project with the contents of the project for removing obstacles to self-management among the forest of this case.

D. Determination

(1) In a tax lawsuit, the tax authority bears the burden of proof as to the legality of the tax imposition disposition and the existence of the tax-related facts, and the degree of proof is required to enable the judge to form a clear conviction (Supreme Court Decision 87Nu285 delivered on October 24, 1989). However, as in the case of this case, the plaintiff who asserts the requirement of tax reduction and exemption, such as whether it falls under the special deduction for long-term holding, should prove it.

(2) In light of the principle of no taxation without the law, the interpretation of tax laws and regulations shall be interpreted in accordance with the law, barring any special circumstance, and shall not be extensively interpreted or analogically interpreted without any justifiable reason. In particular, it accords with the principle of fair taxation by strictly interpreting the provisions that can be seen as clearly preferential provisions among the requirements for reduction and exemption (see Supreme Court Decision 2008Du11372, Aug. 20, 2009). Of the transfer income tax and the system on land for non-business purposes, the legislative purpose of which lies to restrain speculative demand on land by classifying the land for non-business purposes, which is owned by an individual and owned as a means of property increase without using it as a production purpose according to the actual demand, and imposing capital gains tax on the land for non-business purposes (see Supreme Court Decision 2010Du17281, Oct. 25, 2012). The same doctrine shall apply to the grounds for exclusion of the land individually listed in the income tax laws and regulations.

(A) The forest land of this case is prescribed by Presidential Decree as the forest land necessary for the public interest or for the protection and development of the forest under the Mountainous Districts Management Act.

The amount of forest land under commencement after obtaining authorization for a forest management plan under the former Forest Resources Creation and Management Act shall be deemed to be the case.

(B) The following circumstances revealed in the record: (i) The forest management plan prepared for the application for authorization of the instant case is not prepared by the Plaintiff (it is presumed that the Plaintiff also was a forest tending project publicly announced by the authority of the OO market) (ii) there is no other evidence to prove that the Plaintiff had had the forest management plan at the time of the application for authorization of the instant case.

③ Of the evidence No. 4-1, the management plan and implementation performance portion of subparagraph 4-1, the health zone, afforestation, forest tree production, facilities, and income business portion are not indicated, and the forest tending portion of the plan is included as natural forest care, but the plan is included in the year, the year is 2014, and the year is 00 OOrisan28-10, 12 is included in the year, and the OOrisan 28-5, 7 is 2017, and there is no indication in the forest tending implementation column. ④ The Plaintiff did not report the implementation of the forest project in accordance with the forest management plan according to the authorization of the instant case to the OO Mayor before the modification of the instant plan.

(5) According to Article 14(1) of the former Creation and Management of Forest Resources Act, a forest owner whose forest management plan is authorized shall implement the forest management plan, and if the plan is not implemented, it shall not be deemed "forest under commencement with the authorization of the forest management plan" (as alleged by the plaintiff, it shall be sufficient that the actual status of the forest as of the property tax assessment basis date is in the forest project necessary for the protection and fostering of the forest, and shall not necessarily have the performance of the forest project; however, it shall be recognized that the actual status of the forest under commencement with the forest project is in the forest project necessary for the protection and fostering of the forest; however, it shall be deemed that the forest project is implemented regardless of the reporting or permission of the OO market). (6) When the OO market intends to conduct the forest project pursuant to the "forest management plan" in this case, it shall be deemed that the 20th day prior to the commencement of the work, the 20th day prior to the commencement of the work, and the 20th day prior to the reporting of the change of the forest management plan.

9) The Plaintiff submitted the video of the evidence No. 5 by asserting that cutting standing trees, etc. prescribed by the Presidential Decree, such as grassing, ginging, or cutting down trees for growing young trees, etc. may be conducted without permission or reporting. However, the evidence alone is insufficient to recognize that the above forest project was implemented at the time when the Plaintiff asserts that the above forest project was implemented, and that the authorization for modification was not revoked on the ground that the authorization for modification was not revoked