대토토지를 경작하였다는 사실을 인정하기 부족함[국승]
It is not enough to recognize that the arable has cultivated the substitute land.
The burden of proof on the requirements for reduction or exemption of capital gains tax on the substitute land for farmland is not sufficient to recognize that the plaintiff resided in the location of the substitute land in this case and cultivated the substitute land in this case.
2013Guhap2356 Revocation of Disposition of Imposing capital gains tax
KimA
BB Director of the Tax Office
January 21, 2014
February 18, 2014
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s disposition of imposition of KRW 41, capital gains tax for the year 2010, capital gains tax for the Plaintiff, capital gains tax for the year 2010, capital gains tax for the year 201, capital gains tax for the year 201, capital gains tax for the year 201, capital gains tax
1. Details of the disposition;
가. 원고는 2002. 2. 1. CC DD구 EE동 22XX-X 전 51X㎡, 2003. 12. 22. CC DD구 EE동 10XX-X 전 15X㎡, 같은 동 10XX-XX 답 9X㎡, 같은 동 10XX-X 답 8X㎡, 같은 동 10XX-X 전 2X㎡, 같은 동 10XX-X 답 27X㎡, 같은 동 108X-X 임야 311㎡를 취득한 후, 2010. 4. 5. 한국토지주택공사에게 위 각 토지를 공공용지의 협의취득을 원인으로 양도하였다.
나. 원고는 2003. 7. 31. FF시 OO면 OO리 18-X 전 1,52X㎡를 취득한 후, 2011. 2. 1. 유GG에게 위 토지를 양도하였다(이하 위 가, 나항 기재 각 토지들을 통틀어 '이 사건 종전토지'라 한다).
다. 원고는 2011. 3. 11. HH II군 JJ면 KK리 48X 답 1,15X㎡, 같은 면 LL리 164X 답 1,15X㎡(이하 위 각 토지를 '이 사건 대토토지'라 한다)를 취득한 후, 2011. 4. 27. 이 사건 종전토지의 양도에 관한 양도소득세 신고를 하면서 구 조세특례제한법(2011. 12. 31. 법률 제1133호로 개정되기 전의 것, 이하 같다) 제70조에 따라 농지대토에 의한 양도소득세 감면 신청을 하였다.
D. The Defendant deemed that the Plaintiff failed to meet the requirements for residence and self-scam for the reduction of and exemption from capital gains tax by farmland substitute land. On December 17, 2012, the Defendant imposed capital gains tax of 41, capital gains tax of 2010, capital gains tax of 490, capital gains tax of 2010, capital gains tax of 9, capital gains tax of 201, capital gains tax of 210, and 210 won
E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on March 11, 2013, but was dismissed on May 31, 2013.
[Reasons for Recognition] Unsatisfy, Gap evidence 2, 3, Eul evidence 1-1, 2-2, all pleadings
Purport
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
After acquiring the land of this case, the Plaintiff had resided in HH II II II JE JX 77X-ro 3X-ro, and directly planted and managed 80 bamboo trees on the land of this case, and thus, the transfer income tax should be reduced or exempted by the farmland substitute land.
B. Relevant statutes
It is as shown in the attached Form.
C. Determination
1) Article 70(1) of the former Special Taxation Restriction Act and Article 67(3)1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 23590, Feb. 2, 2012) provide that “Where a person who has resided in the previous location of farmland for not less than three years and cultivated directly by acquiring another farmland within one year (2 years in cases of expropriation by consultation or expropriation under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects or by consultation under other Acts) from the date of transfer of the previous farmland, and has resided in a new location of farmland for not less than three years, and the area of new acquired farmland is not less than 1/2 of the area of farmland to be transferred or not less than 1/3 of the value of transferred farmland, a tax amount equivalent to 100/100 of the capital gains tax on capital gains accruing from the substitute land of farmland shall be reduced or exempted by free substitution of farmland to protect farmers and promote agricultural development, and a person liable to pay capital gains tax shall be directly reduced or exempted by the previous farmland.”
2) The burden of proving the requirements for reduction or exemption of capital gains tax on the substitute land for farmland is against a taxpayer claiming reduction or exemption of capital gains tax (see, e.g., Supreme Court Decision 94Nu996, Oct. 21, 194). In this case, it is insufficient to recognize that the Plaintiff resided in the location of the substitute land of this case where the Plaintiff had cultivated the substitute land of this case at the location of the substitute land of this case, and there is no other evidence to acknowledge otherwise.
Rather, comprehensively taking account of the overall purport of the arguments in Eul evidence 2-1, Eul evidence 2, Eul evidence 3, Eul evidence 4, Eul evidence 5-1, 2, 3, Eul evidence 6-1, 2, and Eul evidence 6-3, Eul evidence 5-1, 6-1, 2, and 3, the whole purport of the pleadings is as follows: ① The plaintiff's labor income or business income was generated at the place of business located inCC where the plaintiff's family is residing from the acquisition of the substitute land of this case to the time of the disposition of this case; ② The plaintiff's spouse still resides in the CC, even after the plaintiff changed his domicile to HII II-gun, which is the location of the substitute land of this case; ③ the defendant confirmed on the site of September 10, 2012 that the land of this case was not residing in his domicile, and it is reasonable to view that the plaintiff continued to work in the previous land of this case as the land of this case after the acquisition of the substitute land of this case.
3) Therefore, the instant disposition is lawful.
3. Conclusion
Therefore, the claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.