Early High Court Decision 2011J 1217 (No. 13, 2011)

The disposition of exclusion from reduction or exemption is legitimate because it is difficult to recognize the direct cultivation of the transferred land after the lapse of three years from the date of inheritance.

Since it is insufficient to recognize the fact that the land was transferred after 3 years have elapsed since it was transferred, and it was constantly engaged in the cultivation of crops or the growing of perennial plants on the land before transfer, or that not less than 1/2 of the farming work was cultivated or cultivated with his own labor, the disposition excluding reduction or exemption due to his own farmland is legitimate.

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

2011Gu 1984 Revocation of Disposition of Imposing capital gains tax

XX

Head of Namyang District Tax Office

January 9, 2012

January 30, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 92,605,00 for the Plaintiff on September 10, 2010 shall be revoked.

1. Details of the disposition;

A. On April 1, 1990, the Plaintiff transferred the instant land to the newB on November 13, 2009, while he/she was inherited from the GLA, the Plaintiff’s mother, XX 00-00 m241m2 (hereinafter “instant land”).

B. On November 20, 2009, the Plaintiff filed an application for reduction of or exemption from capital gains tax on the ground that he/she did not own the instant land for at least eight years.

C. On July 2010, the Defendant determined that the instant land cannot be deemed a self-arable farmland as a result of the on-site investigation of capital gains tax, and issued a correction and notification of KRW 92,605,000 to the Plaintiff on September 10, 2010 (hereinafter “instant disposition”).

D. The Plaintiff, who was dissatisfied with the instant disposition, filed an objection on November 16, 2010 and filed an appeal with the Tax Tribunal on March 7, 2010, but was dismissed on May 13, 201.

[Ground of recognition] Facts without dispute, Gap 1, 2, Eul 1, 2, Eul 1, 2, Eul 8 through 10, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Since the Plaintiff directly cultivated the instant land, which is farmland, for not less than eight years including the cultivation period of the deceased LA, the decedent, and thus, the instant disposition that did not recognize the reduction or exemption of capital gains tax pursuant to Article 69 of the Restriction of Special Taxation Act is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Requirements for reduction or exemption of capital gains tax for self-arable farmland

In order to be subject to the reduction or exemption of capital gains tax, pursuant to Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter the same) and Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010; hereinafter the same), the Plaintiff, the decedent, acquired the instant land, and thereafter the said largestA and the Plaintiff shall reside in the Si/Gun/Gu where the instant land is located for at least eight years, or in the Si/Gun/Gu adjacent thereto, or within 20km in straight line from the said farmland, and ② such person shall be continuously engaged in the cultivation of crops or perennial plants or cultivate or cultivate them with his own labor; ③ When the Plaintiff does not cultivate the instant land, the Plaintiff’s acquisition of the instant land and the burden of proof for the transfer of the land to the Plaintiff shall be considered as the period of the Plaintiff’s cultivation.

(2) On November 13, 2009, the fact that the Plaintiff transferred the instant land on the part of November 13, 2009, three years after the Plaintiff inherited the instant land. However, as shown in the Plaintiff’s assertion that the Plaintiff directly cultivated the instant land, it is difficult to believe that the Plaintiff was prepared by a newB, the purchaser of the instant land, and thus, there is no objective material to support the Plaintiff. The aforementioned evidence and the video of the evidence No. 5, supra, are insufficient to recognize the fact that the Plaintiff was engaged in cultivating the crops or perennial plants on the instant land, or cultivated or cultivated not less than a half of the crops or perennial plants with his own labor, and there is no other evidence to prove otherwise.

Therefore, the defendant's disposition of this case imposing capital gains tax is legitimate without recognizing the reduction of capital gains tax to the plaintiff without examining the remaining issues, and the plaintiff's assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.