Suwon District Court 201Gudan1052 ( October 14, 2012)

early 2010 Heavy192 ( October 21, 201)

Since it cannot be recognized that there is a minor fact, it constitutes a non-business land.

In light of the fact that the land was not acquired at the time of the investigation and the fact that the land was not cultivated directly for a considerable period of time, the fact that the elderly women might not easily get out of the land in possession of fertilizers, pesticides, farming organizations, etc., and there are no objective data on the sale of crops, etc., it is difficult to recognize the self-sufficiency

2012Nu17157 Revocation of imposition of capital gains tax

IsaA

Head of Namyang District Tax Office

Suwon District Court Decision 2011Gudan1052 Decided May 14, 2012

March 5, 2013

March 22, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked.

The Defendant’s imposition disposition of capital gains tax of KRW 000 for the year 2008 against the Plaintiff on November 26, 2009 and the imposition disposition of capital gains tax of KRW 000 for the year 200 and the imposition disposition of capital gains tax of KRW 000 for the year 200 shall be revoked.

1. Disposition of revising the transfer income tax;

The following facts are recognized in full view of the purport of the entire pleadings in each entry in Gap, Eul, Eul, and Eul (including household numbers), for which there is no dispute between the parties, or between the parties.

[1]

On July 25, 2002, the Plaintiff acquired and owned an O-dong O-dong 000 767 m2 (hereinafter “the instant land”). On May 14, 2008, the Plaintiff transferred it to CC Comprehensive Construction Co., Ltd. (hereinafter “CC Comprehensive Construction”). In addition, on June 11, 2002, the Plaintiff acquired and owned O-dong 000 m2386 m2 (hereinafter “the instant land 2”), and transferred it to CC Comprehensive Construction on January 222, 2009.” The Plaintiff transferred the transfer value of the instant land 1 to 000 m2, and the acquisition value to 00 m20, and the transfer value to 00 m386 m2 as necessary expenses, and each preliminary return was made on the tax base of transfer income to 00 won.

[2]

O) From September 2, 2009 to September 23, 2009, the Defendant determined that the heavy tax rate shall apply to the land for non-business under Article 104-3 of the Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same) as the result of the general investigation of the capital gains tax on the Plaintiff, the acquisition value of the land of this case and the land of this case No. 1 and the land of this case No. 2 (hereinafter collectively referred to as "each land of this case") was excessive, and the necessary expenses were underreporting, and each land of this case constitutes land for non-business under Article 104-

O) Accordingly, on November 26, 2009, the Defendant issued a revised and notified the transfer income tax for the land of this case 1 as KRW 000 on November 26, 2009, KRW 000, and necessary expenses, KRW 000, and KRW 000 on the land of this case by applying the tax rate of KRW 60%, and KRW 2008 on the land of this case for KRW 200 on the land of this case, and KRW 000 on the transfer income tax for the land of this case 2 of this case for KRW 209 (hereinafter referred to as "each taxation disposition of this case").

O The Plaintiff appealed to each of the instant dispositions, and raised an objection to the Defendant on February 12, 2010, and the Defendant dismissed it on March 12, 2010, and the Plaintiff filed an appeal with the Tax Tribunal on June 14, 2010, and the Tax Tribunal dismissed it on January 21, 2011.

2. The plaintiff's assertion

Since the Plaintiff resided in the vicinity, and cultivated crops by itself, etc. after acquiring each of the instant lands, each of the instant lands does not constitute non-business land under Article 104-3 of the Income Tax Act, each of the instant dispositions, which applied the tax rate of 60% on the transfer income of each of the instant lands, is unlawful.

3. Determination

A. Relevant statutes

(1) During the period as prescribed by the Presidential Decree, while the Income Tax Act, and for the period as prescribed by the Presidential Decree, the owner of farmland who does not reside in the location of the farmland or does not cultivate the farmland by himself shall be deemed as the non-business land and the tax rate of 60/100 of the tax base of transfer income is applied (Articles 104 and 104-3(1)1 (a))

The Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301, Feb. 4, 2009; hereinafter the same shall apply) provides that "the period prescribed by Presidential Decree" in the part other than each subparagraph of Article 104-3 (1) of the Income Tax Act means the period exceeding two years during the five years immediately preceding the transfer date, and the period exceeding one year during the three years immediately preceding the transfer date, and the period exceeding 20/100 of the period of the ownership of the land" (Article 168-6 subparagraph 1). The Enforcement Decree of the Income Tax Act also provides that "non-business land" means both Si/Gun/Gu and neighboring Si/Gun/Gu or farmland that are the same as the location of farmland, and that those who have registered as residents in an area located within 20 km in a straight line from the farmland are cultivating farmland except for those who do work under the provisions of subparagraph 5 of Article 2 of the Farmland Act, and that those who own agricultural plants or are constantly cultivating agricultural corporations under Article 168-2 (2) of the Farmland Act.

(Article 2(5))

The Enforcement Rules of the Farmland Act, and the cases where farmers cultivate crops or cultivate perennial plants by more than half of their labor force (Article 4 subparagraph 1) or any other similar cases recognized by the Mayor, the head of the Gu, the head of the Eup/Myeon, or the head of the Eup/Myeon shall be deemed to fall under "on a regular basis" (Article 2).

(2) Generally, in a lawsuit seeking revocation of a taxation disposition, the burden of proof on the facts of taxation is in the tax authority, and the requirements for non-business land over which capital gains tax is heavy also bears the burden of proof against the defendant who is the tax authority (see Supreme Court Decision 2010Du8423, Sept. 30, 2010).

B. Issues and determination of the instant case

(1) There is no dispute between the parties that the Plaintiff resided in a Si/Gun/Gu or a Si/Gun/Gu adjacent to the location of each of the instant land for the period prescribed in Article 168-6 of the Enforcement Decree of the Income Tax Act. Therefore, the issue of the instant case is whether the Plaintiff was engaged in the cultivation of crops or perennial plants for the period prescribed by the aforementioned statutes, i.e., whether the Plaintiff was ordinarily engaged in the cultivation of crops or perennial plants, or has cultivated or cultivated 1/2 or more of the farming works with his own labor.

(2) The following facts are examined by comprehensively taking account of the descriptions of the evidence Nos. 3 through 6 and the purport of the entire pleadings in the testimony of Park E-E by the witness of the court below.

• On September 14, 2009, Park Nam stated that "the plaintiff is not in a situation in which he can grow as Nohri, he can grow as Nohri, and only he has received agricultural crops by suffering them from waves, heat, heavy wave, etc.," and that "I attend the court below as a witness, and the plaintiff was present in the court below, from 2002 to CC Construction, until he acquired each of the lands of this case, he did not directly grow in each of the lands of this case, and it was clearly known that I would like to cultivate the people who grow in the village of each of the lands of this case, and that I would like to know the credibility of each of the lands of this case from 200 to 2008."

• On September 15, 2009, the Plaintiff acquired each of the instant lands in consideration of “defluence and self-refluence” in the course of the investigation at the Namyang Puju District Office. Since the Plaintiff was partly suffering from each of the instant lands but was neglected for a few years, and did not harvest them, it would have been self-fluence. However, even though it was true, it was true that the instant land was influences, but the Plaintiff was influenced, and the fact that the Plaintiff did not directly cultivate each of the instant lands for a considerable period, and that the Plaintiff did not directly cultivate the instant land for a considerable period.

• The distance between the OOO apartment 00 00 OO apartment 00 00 00 00 , the plaintiff was 13.57 km and the land of this case at the Namyang-si, the plaintiff was 13.57 km on July 28, 2005, and the time required to move to and from the vehicle was about 21 minutes, and it seems that it was not easy for the plaintiff, who was a woman before and after the age of 70, to move to and from each of the land of this case.

• Since the area of each land of this case is 1,153 square meters in total, it seems difficult to cultivate vegetables without using agricultural machinery and considerable amounts of fertilizers or agrochemicals. There is no evidence supporting the Plaintiff’s purchase or lease of agricultural machinery or the Plaintiff’s purchase of fertilizers or agricultural chemicals in the name of the Plaintiff, and there is no objective material on the sales of agricultural products cultivated in each land of this case.

• In the farmland ledger as of April 2, 2007, the first time written by the Plaintiff for the land of this case, while the farmland ledger was issued by the applicant’s application and statement without verifying whether or not the land of this case is self-definite, it is difficult to consider the Plaintiff as direct material for the fact that the Plaintiff has self-definited each of the land of this case during the period stipulated in Article 168-6 of the Enforcement Decree of the Income Tax Act. In addition, even though each of the land of this case appears to have been developed as dry field from the National Land Information Geographical Institute to be developed as dry field around May 2006, it is difficult to view the Plaintiff to have self-defined each of the land of this case for the period stipulated in the above statutes.

• It is difficult to believe that there is no objective evidence to know the Plaintiff’s place of sales, sales volume, import amount, etc. of crops cultivated in each land of this case, and that newF received KRW 000 from the Plaintiff at consulting costs related to the sale and purchase of each land of this case and reported transfer income tax on each land of this case on behalf of the Plaintiff. In addition, it is difficult to easily believe that the GG’s certificate of cultivation and each confirmation of self-employed fact-finding of the preparation of new HH, etc. (Articles 2-1 and 3 of evidence 2-1 of the evidence 2 of this case) have been signed and sealed only on the same confirmation document prepared and printed by the Plaintiff, and that there is no objective evidence to know that the Plaintiff is the Plaintiff’s place of sales, sales volume, and import amount, etc. of crops that the Plaintiff cultivated in each land of this case. In addition, considering the fact that the producer is not only the Plaintiff’s place of business, but also the Plaintiff’s place of business, its credibility is low.

(2) In full view of the above circumstances, it is recognized that the Plaintiff did not own each of the instant land during the period stipulated in subparagraph 1 of Article 168-6 of the Enforcement Decree of the Income Tax Act, and each of the instant dispositions that applied the tax rate of 60% by deeming the instant land as non-business land is lawful.

4. Conclusion

Therefore, the plaintiff's claim seeking revocation of each disposition of this case is dismissed as it is without merit, and the judgment of the court of first instance is justified as it is consistent with this conclusion, so the plaintiff's appeal is dismissed and it is so decided as per Disposition.