The burden of proof of non-business land

In view of the fact that the tax authorities' proof of "non-existence of the relationship and self-reliance" is difficult to prove, and that the taxpayer has adopted the method of return and payment for the transfer income tax, it is reasonable to select the taxation requirements and submit the evidentiary materials.

The contents of the decision shall be the same as attached.

Ma-○

Head of Namyang District Tax Office

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of capital gains tax of KRW 82,037,410 against the Plaintiff on July 1, 2009 is revoked.

1. Circumstances of dispositions;

A. On September 26, 2003, the Plaintiff acquired answer 688 Ma○-ri 688 m2,891 m2 (hereinafter “instant farmland”) and transferred it to South A on December 24, 2007.

B. On January 10, 2008, the Plaintiff filed a preliminary return on capital gains tax base by applying the general tax rate to the gains from the transfer of the farmland in this case.

C. On July 1, 2009, the Defendant issued a correction and notification of capital gains tax of KRW 82,037,410 to the Plaintiff on the ground that the instant farmland constitutes non-business land under Article 104-3 of the Income Tax Act (hereinafter “instant disposition”).

D. The plaintiff, on August 19, 2009, filed an appeal with the Tax Tribunal on August 19, 2009 but was dismissed on November 26, 2009.

[Reasons for Recognition] Facts without dispute, Gap 1, 9, Eul 1, 5, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the farmland of this case directly cultivated the farmland of this case while residing in the vicinity of the farmland of this case from the time of acquisition to the time of transfer, the disposition of this case which denied and executed the plaintiff's self-defense is unlawful.

(b) relevant statutes;

It is as shown in the attached Form.

C. Determination

The former Income Tax Act (amended by Act No. 8541 of Dec. 31, 2007; hereinafter "former Income Tax Act") stipulates that the transfer income tax rate shall apply to the transfer of non-business land. Whether the land falls under the non-business land shall be proved by the tax authority as it falls under the taxation requirements. However, the Income Tax Act widely provides non-business land, which functions as the grounds for reduction or exemption of the non-business land. In the case of farmland, it serves as the basis for the non-business land. The matters belonging to the taxpayer's territory can be easily proved by the taxpayer, while it is difficult for the tax authority to prove that the taxpayer is "non-business land" due to the nature of the proof, and it is reasonable for the taxpayer to report and pay the transfer income tax, and considering that the tax authority adopts the method of return and payment, it is reasonable to prove that the taxpayer is not the non-business land under the Income Tax Act, and that the taxpayer is also the non-business land.

Meanwhile, according to Articles 104 and 104-3(1) of the former Income Tax Act and Article 168-6(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20516, Feb. 22, 2008), in order to constitute a non-business land, the period of non-business in the case of land for which the period of possession is more than three years but less than five years is more than three years, the period of non-business in the case of land for which the period of possession is more than three years, the period exceeding one year in the three years immediately preceding the date of transfer, and the period exceeding 20% in the case

As seen earlier, in the case of farmland, the issue is whether or not the plaintiff has cultivated the farmland of this case as of whether or not it constitutes a non-business land. The plaintiff must prove that the plaintiff has cultivated the farmland of this case for at least three years from the holding period of the farmland of this case, and for at least two years from the three years immediately before the transfer date (from December 25, 2004 to December 24, 2007) and for at least two years from the three years immediately before the transfer date (from December 25, 2004 to December 24, 207), the period equivalent to at least 80/100 of the ownership period of the land of this case, namely, i.e., 1,241 (= x80/100 on 151, x80/100 on 150, and below decimal point).

According to the records in Gap 4, 6, and 12, and the fact-finding results with respect to the Gyeonggi ○○○○○ head of this court, the fact that the plaintiff stated in the farmland ledger prepared by the head of Gyeonggi ○○○○○○○○, that the plaintiff was self-fluence of the farmland of this case from around 2004 to 2007, and the previous farmland membersB prepared a self-management farming confirmation as above, is recognized.

However, in light of the following circumstances, which are acknowledged by comprehensively considering the overall purport of pleadings as to the statements in Gap evidence Nos. 4, 7 through 9, 11, and 4, the facts acknowledged earlier are as follows: (a) it is difficult to recognize that the plaintiff himself, for a period equivalent to at least one of the requirements of not less than 80/10 of the ownership period of the land (i.e., the period equivalent to at least 80/100 of the ownership period, namely, i.e., i., e., 1,241 (i.e., x80/100, x80/1000, x80/15100, i.e., the period of cultivation of crops or perennial plants, or cultivation or cultivation of not less than 1/2 of farming work with his own labor) for at least 3 years and 3 years prior to the transfer date; and (b) there is no lack of evidence to recognize otherwise.

The Plaintiff had worked for the Korea Broadcasting System (KBS) from the date of acquiring the farmland in this case to June 30, 2006. The Plaintiff’s total benefits that the Plaintiff received from the said Corporation shall be KRW 94,230,110 in 203, KRW 99,147,485 in 2004, KRW 105,443,238 in 2005, KRW 52,601,310 in 206.

The Plaintiff, at the time of the acquisition of the farmland of this case, cannot be deemed to have cultivated the farmland of this case by working in the Seoul ▽▽▽△△ for five months (157 days) from September 26, 2003 to February 28, 2004 at approximately 70 kilometers at the domicile of approximately 5 months (157 days).

B. On March 1, 2004, the Plaintiff had been working in the KBS △ Transmission Office within approximately 30 kilometers in approximately two years and four months (852 days) after March 1, 2004, and had worked in the repeated form (No. 09:0-18:00 in daily work, night work, No. 18:00-24:00 in night work, and No. 00:00 in night work, and No. 18:00 in night work, etc.) at intervals of 4 days, it is difficult for the Plaintiff to understand that he had cultivated the entire farmland (no. 9,030§³) owned by the Plaintiff in the vicinity of the farmland including the farmland of this case at all times on holidays or night work day.

㉣ 원고가 제출한 퇴비 등 구입내역은 원고가 주장하는 기간 동안 자경하였다는 점을 인정하기에 턱없이 모자란 점.

Compared to this, since the plaintiff retired from KBS, the period is about one year and six months (542 days) until the transfer of the farmland of this case.

3. Conclusion

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