Cho High Court Decision 2012 Deputy 1387 (O2, 2012)

It is difficult to recognize that substitute farmland was self-sufficient.

In light of the fact that the substitute farmland purchaser stated that the substitute farmland had been abandoned in the state of miscellaneous land before the purchase, the distance from the substitute farmland to the domicile is considerable, the real estate consulting business or manufacturing business, etc. during the period of the substitute farmland holding, and the airline dust does not seem to have shown any trace that crops were cultivated or cultivated, etc., it is difficult to deem that the substitute farmland was depreciated.

2012Guhap229 Revocation of Disposition of Imposing capital gains tax

Note AAAA

Kim Jong-soo

March 7, 2013

March 28, 2013

1. The plaintiff's claim is dismissed.

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

The imposition of capital gains tax of KRW 000 on January 6, 2012 by the defendant and the imposition of KRW 0000 on December 1, 2012 shall be revoked.

1. Details of the disposition;

The following facts may be found in accordance with Gap evidence 1, evidence 3, evidence 1, and 2, evidence 5, evidence 1 to 3, evidence 5, evidence 1, 2, and evidence 2, evidence 3, and evidence 9-1 to 4 of evidence 9:

A. On July 21, 2008, the Plaintiff sold to Nonparty BB, the Plaintiff, the Plaintiff owned, the Plaintiff, an OO 000 square meters (hereinafter referred to as “the farmland in this case”), and on July 23, 2008, registered the transfer of ownership with respect to the farmland in this case.

B. On March 18, 2008, the Plaintiff acquired 000 0,322 m2 in the same m2008, and divided it into eight m2 to eight m2 in the same m2, and divided it into eight m2000 to eight m2 in the same m2000 and owned 491 m2 in the same m2000 m2 (hereinafter referred to as “alternative farmland”) and completed a provisional registration with respect to the substitute farmland on January 4, 2010, which was based on the provisional registration, on March 31, 2011, the Plaintiff completed the registration of ownership transfer to the above m2E on the basis of the provisional registration.

C. On December 31, 2008, the Plaintiff filed a final return on capital gains tax on the transfer of the farmland in this case on the grounds that Article 70 of the Restriction of Special Taxation Act shall apply to the reduction or exemption of capital gains tax on farmland in accordance with the said provision.

D. However, on January 6, 2012, the Defendant imposed and notified the Plaintiff of the imposition of additional tax of KRW 000 on the ground that the Plaintiff did not meet the requirements for reduction and exemption of capital gains tax under Article 70 of the same Act for three or more years after the Plaintiff acquired substitute farmland, and on November 28, 2012, on the ground that the Plaintiff did not specify the type of additional tax and the basis for calculation of the amount of tax when imposing the said additional tax, etc. on the above additional tax, the Defendant issued ex officio revocation of the imposition of KRW 000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00).

E. On January 6, 2012, the Plaintiff appealed to the imposition of capital gains tax and additional tax, and filed an appeal with the Tax Tribunal on March 8, 2012, but the Tax Tribunal dismissed the appeal on June 12, 2012.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, as the owner of the farmland of this case, resided in its seat for more than three years, and acquired substitute farmland on March 18, 2008, and continued to cultivate the farmland of this case on July 23, 2008, within one year thereafter, until the farmland of this case is transferred, and the substitute farmland is sold to E on March 31, 201 from the date of acquisition to E. Therefore, the disposition of this case, even though the income from the transfer of the farmland of this case was reduced or exempted from capital gains tax due to the farmland of this case under Article 70 of the Restriction of Special Taxation Act, to which the capital gains tax reduction or exemption provisions on other premise was not applied, is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) According to Article 70(1) of the former Restriction of Special Taxation Act (amended by Act No. 11133, Dec. 31, 2011); Article 67(1), 67(2), and 67(3)2 of the former Enforcement Decree of the Restriction of Special Taxation (amended by Presidential Decree No. 23590, Feb. 2, 2012) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 23590, Feb. 2, 2012), a person eligible for reduction or exemption must directly cultivate substitute farmland while residing in a substitute farmland for at least three years in order to be eligible for reduction or exemption from capital gains tax due to farmland. The term "direct farming" means that a resident engages in cultivating or cultivating crops or perennial plants on his/her own farmland, or engages in cultivating or cultivating one half or more of them with his/her own labor, but it includes not only cases in which he/she directly cultivates them, but also cases in which a person asserts to cultivate farmland by proxy, by proxy, or lending.

2) Therefore, we examine whether the Plaintiff has cultivated substitute farmland directly or under his responsibility and account for not less than three years.

The testimony of Gap evidence 6-1, Gap evidence 7, and Eul evidence 7 is hard to believe in light of the facts of recognition, and Gap evidence 4-1 through 7 (the photographs taken after the filing of the lawsuit in this case and the photographs of Gap evidence 13-1 (the photographs of substitute farmland on around 2005) and Gap evidence 13-2 (the aerial photography taken as substitute farmland on around 2009) of the substitute farmland for the period from the time of its acquisition until the time of its sale, and the testimony of Gap evidence 7 are insufficient to recognize that the other crops have been reproduced again for the above period of time, and it is not sufficient to directly recognize that the plaintiff directly cultivated the farmland for the above period of time, and it is not sufficient to directly recognize that the plaintiff directly cultivated the farmland for the above period of time, as argued by the plaintiff, and it is not sufficient to recognize that the plaintiff directly cultivated the farmland for the above period of time, and it is not sufficient to directly substitute the above evidence that the plaintiff directly cultivated the farmland (which is not directly substituted for the plaintiff).

3) Rather, considering the following facts: (i) Nonparty E purchased substitute farmland from the Plaintiff on October 10, 201, at the time of investigation into the said transfer income tax; (ii) Nonparty E testified that the said substitute farmland was left abandoned in the state of miscellaneous land from October 10, 201; (iii) Nonparty E testified that the husband did not manage or neglect the substitute farmland from January 4, 201 until the acquisition of farmland, and (iv) Nonparty E testified that the said substitute farmland had been used from 20 to 200 OOOri 231 until the transfer of farmland, and that the Plaintiff had been used from 20 to 200 OO 28, and that it had been used from 200 to 2300 O 24 meters after the transfer of farmland, and that it was used from 20 to 2300 O 24 meters after the transfer of farmland, and that it was used from 20 to 200 O 27 meters after the transfer of farmland.

4) Therefore, it is difficult to view the Plaintiff’s substitute farmland as having refluented, and thus, the instant disposition based on such premise is lawful.

3. Conclusion

Then, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.