In calculating the corporate tax on the transfer income of non-business land, the acquisition value shall be the book value at the time of transfer.

In the case of special surtax under the former Corporate Tax Act, even if there was a provision on the fictitious acquisition date, it cannot be deemed general and permanent in the area of the tax law to establish the regulations for fictitious acquisition, one of such measures for tax reduction and exemption. Therefore, in calculating the corporate tax on capital gains on non-business land, the acquisition price

2010Guhap575 Revocation of Disposition of Revocation of Application for Corporate Tax Revision

SU

Head of Public Tax Office

May 16, 2012

June 20, 2012

1. The plaintiff's claim is dismissed.

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

The defendant's rejection of correction of 00 won of corporate tax of 2008 against the plaintiff on July 7, 2009 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a legal entity that was established for the purpose of gathering the Mano, taking into account the Mano, and the Mano No. AB, and the Mano No. B B, and the Mano No. Mara, and enhancing the loyalty and loyalty of the Mano Mano Mano.

B. On June 25, 1963, the Plaintiff: (a) completed the registration of transfer on June 29, 1962 with respect to the distribution of Puri 00 square meters (hereinafter “instant land”); (b) on June 29, 1962, the Plaintiff owned the instant land after completing the registration of transfer on the ground of donation; and (c) on July 30, 2008, the Plaintiff sold the instant land at KRW 00 and completed the registration of transfer on September 22, 2008.

C. The Plaintiff reported and paid KRW 000,000, considering the transfer income of the instant land as KRW 000, when filing a report on corporate tax reverted to year 2008.

D. On April 27, 2009, even if there was no book value on the land, the property value continued from the time of acquisition to the time of transfer. Article 3 (2) 5 of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998) and Article 8 (2) of the Addenda of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998) provide that the acquisition value of the land for non-business use acquired before December 31, 1990 shall be the acquisition value of the land of this case as of January 1, 199, and the amount of the land for non-business use under Articles 60 and 61 (1) through (3) of the Inheritance Tax and Gift Tax Act ("the Inheritance Tax and Gift Tax Act") shall be the acquisition value of the land of this case as of January 1, 191, the defendant shall claim that the remaining amount of the land of this case should be deducted from 000 won.

E. The Plaintiff filed an appeal with the Tax Tribunal, but the Tax Tribunal dismissed the appeal on November 23, 2009.

[Ground of recognition] Facts without dispute, entry of Gap evidence Nos. 1 through 5, and 8 (including branch numbers for those with additional numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Even in cases of corporate tax on capital gains from non-business land under Article 55-2 of the former Corporate Tax Act (amended by Act No. 9267 of Dec. 26, 2008; hereinafter the same), the provisions of the Addenda of this case shall apply mutatis mutandis by analogy, and the amount calculated by calculating the value calculated under Article 61(1) through (3) of the Inheritance Tax and Gift Tax Act as the book value and deducting the amount from the transfer amount shall be deemed as capital gains. However, on different premise, the instant refusal disposition prior to the instant disposition is contrary to the principle of equality under the Constitution, the principle of proportionality, the principle of prohibition of substantial taxation and retroactive taxation, and the

B. Relevant statutes

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

C. Determination

Article 3 (3) 5 of the Corporate Tax Act provides that corporate tax on income for each business year shall be reported and paid by considering the income generated by the disposal of land, etc. when the corporation disposes of the land, etc. as income for each business year. On the other hand, Article 55-2 of the Corporate Tax Act provides that corporate tax shall be additionally paid by calculating "corporate tax on capital gains for each business year's income where the land, etc. subject to transfer are land for non-business use or is located in an area where the land price increases."

As above, the Corporate Tax Act requires an additional payment of "corporate tax on capital gains from the transfer of land, such as land" to reduce speculative demand for non-business land, which is not directly related to the business purpose of a non-profit domestic corporation, and stabilize the real estate market by recovering speculative gains. Therefore, it is intended to achieve the legislative purpose of the Corporate Tax Act through effective taxation on the increase in the value of non-business land held without direct connection with the business purpose of a non-profit domestic corporation, and thus, it seems to be valid and appropriate to restrain speculative demand by blocking the desire of long-term possession of land for non-business purposes. Rather, from the perspective of realizing the principle of substantial taxation, it is consistent with the other public interest purpose of tax corresponding to the taxable capacity by seeking taxation based on the actual tax base from the perspective of realizing the principle of substantial taxation. Even if there was a provision of special surtax under the former Corporate Tax Act, it is one of the regulations for fictitious acquisition, which is a tax reduction and exemption.

Since it cannot be seen as a general and permanent establishment in the territory of this tax law (see, e.g., Constitutional Court en banc Decision 2009Hun-Ba311, Jul. 28, 201), the acquisition value in calculating corporate tax on capital gains from the transfer of non-business land shall be sufficient when calculating pursuant to Article 55-2(6) of the Corporate Tax Act, and the supplementary provision of this case shall not be applied by analogy.

Therefore, the Plaintiff’s assertion that the instant disposition is lawful, and that the instant supplementary provision does not apply by analogy violates the principle of equality, the principle of proportionality, or that it violates the principle of substantial taxation, the principle of prohibition of retroactive taxation, and the principle of no taxation without law is without merit.

3. Conclusion

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