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(영문) 부산고등법원 2016. 08. 24. 선고 2016누10339 판결

자경농지에 따른 감면을 인정하지 아니하고 양도소득세를 부과한 처분은 적법함[국승]

Case Number of the immediately preceding lawsuit

Changwon District Court-2015-Gu 22460 ( October 16, 2016)

Title

The disposition imposing capital gains tax without recognizing the reduction or exemption for self-farmland is legitimate.

Summary

(As in the judgment of the first instance), it shall not be recognized that direct cultivation has been conducted for at least eight years, and there is no ground to deny the admissibility of evidence such as a confirmation document, etc.

Related statutes

Article 69 of the Restriction of Special Taxation Act (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

Cases

2016Nu1039 Transfer detailed and action for cancellation of disposition

Plaintiff

○ ○

Defendant

○ Head of tax office

Conclusion of Pleadings

2016.07.20

Imposition of Judgment

2016.08.24

Text

1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 00,000,000 (including additional tax) (including additional tax) belonging to the Plaintiff on December 15, 2014 against the Plaintiff on December 15, 2014 shall be revoked.

Reasons

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court concerning this case is as follows: "The level of half" of the confirmation document of this case of this case of No. 11 among the grounds of the judgment of the court of first instance shall be "a level of half"; "the plaintiff shall include the land of this case" of No. 11 among the contents of the confirmation document of this case of this case of this case of No. 3; "the plaintiff shall include the land of this case of this case" of No. 7th as of Oct. 6, 2014 x "the plaintiff shall include the land of this case of this case x the city adjacent to the land of this case of this case of this case x area x area x area x x x x x x 000-0 of the interest rate x 00 of the same interest rate x n.e., the plaintiff's argument at the court

【Judgment as to the Plaintiff’s argument on the grounds of appeal】

A. The plaintiff's assertion

1) Violation of tax investigation procedures

The tax investigation conducted by the defendant for the disposition of this case (hereinafter referred to as the "tax investigation of this case") is unlawful since it was conducted without taking procedures such as prior notification under Article 81-7 of the Framework Act on National Taxes and delivery of the taxpayers' rights charter under Article 81-2 of the same Act, and thus, the disposition of this case is also unlawful.

2) Probative value of the instant confirmation document, etc.

The confirmation document of this case (No. 3) is prepared by pressure on △△△△ in which a tax official who did not present his identification card refuses to prepare it, and the written answer (No. 4) to the plaintiff couple is prepared without notifying the right to refuse to appear, and the right to receive assistance provided for in Article 81-5 of the Framework Act on National Taxes is not notified, and the tax official did not notify the person who made the statement prior to preparation of such written confirmation or written answer. Accordingly, the above written confirmation or written answer is contrary to the principle of due process of law under the Constitution, and thus, it cannot be used as data for the disposition of this case, and accordingly, the disposition of this case

B. Determination

1) Determination on the illegality of the tax investigation procedure

In light of the above facts, the Plaintiff’s tax investigation was conducted from October 24, 2014 to October 31 of the same month, and the Plaintiff’s prior notice on the tax investigation of this case was received on October 28, 2014, not from 10 days before the commencement of the tax investigation. However, the Plaintiff’s prior notice on the tax investigation of this case cannot be seen as having been issued to the extent that it is difficult to achieve the purpose of the tax investigation of this case as stated in the proviso to Article 81-2(2) and Article 81-7(1) of the Framework Act on National Taxes. However, the Plaintiff’s prior notice on the tax investigation of this case cannot be seen as having been issued to the extent that it is difficult for the Plaintiff to achieve the purpose of the tax investigation of this case, i.e., receipt and confirmation of the taxpayers’ rights charter, etc. prepared on October 28, 2014.

2) Determination on the assertion of admissibility of the instant written confirmation, etc.

According to the testimony of the witness of the first instance court, while the tax officials visiting the land of this case at the time when the confirmation document of this case is prepared, there is no evidence to acknowledge that the confirmation document of this case was prepared by the pressure of tax officials. In addition, Article 170 of the Income Tax Act provides that public officials engaged in the business of income tax may ask questions to taxpayers, etc., or investigate or order them to submit relevant books, documents or other things, and that tax officials shall exercise the right to ask questions when necessary for performing their duties, and that public officials shall exercise the right to ask questions when they are engaged in the business of income tax, and that public officials shall exercise the right to ask questions when they are allowed to ask questions to taxpayers, and that they are required to confirm and taxation.In light of the fact that the series of direct collection of data is a voluntary investigation conducted on the premise of the taxpayer's consent, it is difficult to view that the tax officials are obliged to give notice of the right to remain silent and the plaintiff's right to refuse to make a statement. On the other hand, Article 81-5 of the Framework Act on National Taxes to assist in a tax investigation does not necessarily have the right to present.

2. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.