Cho High Court Decision 2013 Deputy 2279 (2013.08)

Land acquired under the Act on Special Measures shall be deemed to have been acquired at the time of acquisition.

The time of acquisition of land subject to reduction or exemption for eight years is not clear, and the registration receipt date recorded in the register pursuant to Article 98 of the Income Tax Act and Article 162 (1) 1 of the Enforcement Decree of the same Act shall be deemed the time of acquisition. Therefore, the plaintiff's assertion that the time of acquisition of the cause of registration is

Article 98 of the Income Tax Act

2013Guhap2516 Revocation of Disposition of Imposing capital gains tax, etc.

Park AA

Head of tax office

May 20, 2014

July 11, 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 capital gains tax for the year 2009 against the Plaintiff on February 1, 2013 is revoked.

1. Details of the disposition;

"A. On August 18, 2009, the Plaintiff transferred OO-gun O-gun O-gun O-gun No. 342 and 7,150 square meters (hereinafter "transfer land of this case"). The Plaintiff filed an application for reduction or exemption of capital gains tax with the Defendant in May 2010 on the ground that the transfer land of this case constitutes self-owned farmland for at least eight years," and the Defendant did not satisfy the requirements for acquisition of land under the former Act on Special Measures for Acquisition of Real Estate from O-gun No. O-gun No. 348 square meters, ② 384 56 m2, 385 m2, 876 m2,165 m2, and 165 m2,000 (hereinafter "O-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-M-S-M-M.

The key land of this case

OO also OOOOOO

(1) 348 square meters in dry field 678 square meters.

(2) 384 square meters in dry field.

(3) 385 square meters in paddy field 55 square meters.

(4) Before 387 square meters 876 square meters

Registration

Registration

Objectives

Transfer

Preservation of Ownership

Preservation of Ownership

Transfer

Date of receipt of registration

August 24, 1993

December 2, 1994

August 24, 1993

August 24, 1993

Registration

Grounds

January 10, 1981

-

-

December 20, 1980

Land cadastre

Details of changes

January 12, 1979

IB Transfer

August 24, 1993

Transfer

July 1, 1913

SongCC’s circumstances

November 1, 1993

Change of name

December 2, 1994

Preservation of Ownership

May 18, 1929

DoD Transfer of Rights

July 24, 1993

Change of name

August 24, 1993

Preservation of Ownership

January 28, 1981

Preservation of EE Ownership

August 24, 1993

Transfer

The date of sales contract

-

-

-

December 1, 1981

C. Accordingly, the Plaintiff filed a request for pre-assessment review on December 27, 2012, but the said request was dismissed on January 16, 2013.

D. On February 1, 2013, the Defendant issued a request for the revocation of the instant disposition to the Tax Tribunal on the ground that the instant land, such as the notice of pre-announcement of taxation, does not meet the requirements for self-reliance and residence for at least eight years among the requirements for reduction and exemption prescribed in Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter the same) (hereinafter “instant disposition”). (e)” and (e) The Plaintiff filed a request for a trial seeking revocation of the instant disposition with the Tax Tribunal on May 1, 2013, but the said request was dismissed on July 8, 2013.

Facts without dispute over the basis of recognition, Gap evidence 1-1, Gap evidence 2, 3, Gap evidence 6-1 through 4, Gap evidence 7-1, 2, Gap evidence 12-1, Eul evidence 1, 2-2, Eul evidence 3-1, 3-2, and the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

The Defendant deemed the time of acquisition of the instant land as the date of receipt of registration entered in the real estate registration book and determined that it did not meet the requirements for self-reliance and residence for not less than eight years. However, the instant land was subject to registration of preservation of ownership or registration of ownership transfer in accordance with the Act on Special Measures (the sale before December 31, 1985, etc. subject to application) and thus, the time of acquisition is the cause of registration entered in the real estate registration book or the transfer on December 31, 1985 at the latest.

Therefore, since the transfer of the pertinent land constitutes the requirement of capital gains tax reduction under Article 69(1) of the former Restriction of Special Taxation Act, the disposition of this case excluded therefrom shall be revoked in an unlawful manner.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(i) the legislative intent of the provision on requirements for reduction of farmland and burden of proof for not less than eight years;

Article 69(1) of the former Restriction of Special Taxation Act provides that capital gains tax shall be exempted on income accruing from the transfer of farmland as of the date of transfer among the land prescribed by Presidential Decree among the land cultivated by a resident living in a farmland for not less than eight years. The purport of the provision is as part of land farming policy, thereby reducing the tax burden due to the transfer of farmland (see Supreme Court Decision 90Nu4082, Oct. 30, 1990).

The burden of proof on the requirements for reduction or exemption of capital gains tax is against a taxpayer who asserts the exemption of capital gains tax (see, e.g., Supreme Court Decision 2002Du7074, Nov. 22, 2002). Under the principle of no taxation without law, the interpretation of tax laws is to be interpreted in accordance with the legal text, barring special circumstances, which prevents the requirements for tax exemption or the requirements for tax exemption, and it is not permissible to expand or analogically interpret without reasonable grounds. In particular, the strict interpretation of the provision regarding the requirements for reduction or exemption that can be deemed as a clear preferential provision in the said provision accords with the principle of fair taxation (see, e.g., Supreme Court Decision 2002Du9537,

2) The time of acquisition of the key land

"A) Article 98 of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same) and Article 162 (1) 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; hereinafter the same) provide that the time of acquisition and transfer shall, in principle, be the date of settlement of the price. However, if the date of settlement of the price is unclear, the time of acquisition and transfer shall be the date of receipt of registration recorded in the register and register. The above time of acquisition and transfer shall be the base date for calculating gains on transfer of assets, and the time of application of the Act and subordinate statutes shall be the date of sale and purchase of the land of this case, including the Plaintiff’s sale and purchase of the land of this case, which was prepared to the head of the 3rd Gun before the date of sale and purchase of the land of this case (see Supreme Court Decision 94Nu2480, Aug. 26, 1994).

However, it is insufficient to recognize that the Plaintiff acquired the instant land and liquidated the price thereof before December 31, 1985, the date of acquisition alleged by the Plaintiff, or before December 31, 1985, on the sole basis of the testimony of the above-mentioned facts and the witness experience. There is no other evidence to acknowledge it.

C) Rather, in light of the following circumstances, it is difficult to view that the Plaintiff acquired the instant land prior to December 31, 1985, on the date of the Plaintiff’s ground for registration on the registry or on the date of December 31, 1985, based on the overall purport of the pleadings in each of the above evidence, evidence Nos. 1, 7-1, 2, 8-1, 3, A, 9, 10-1, 11-1, 14, 16, 3-1, 3-2, and 3-2.

(1) Article 234-9(3) of the former Local Tax Act (amended by Act No. 4611, Dec. 27, 1993) provides that the employer is obligated to pay the aggregate land tax in a case where the ownership is unclear as of the tax base date for aggregate land tax and it is practically impossible to confirm the owner. Therefore, the Plaintiff cannot readily conclude that the Plaintiff is the de facto owner of the land at issue at issue at around that time solely on the ground that the Plaintiff paid the aggregate land tax of this case on October 30, 1991.

(2) On December 11, 1981, the Plaintiff filed a sales contract (No. 12 Evidence No. 12) stating that it purchased the above OOri 387 land (No. 387) among the disputed land, and there is no evidence to acknowledge that the purchaser is a yellow F, which is the above yellow F, as the Plaintiff’s agent. Furthermore, the above sales contract date is inconsistent with the registration date (No. 20, 1980). Furthermore, according to the above sales contract, only the fact that the seller paid the down payment OO of the purchase price to the seller (E) on the date of the contract, and it is difficult to view that the above sales contract was settled solely on the basis of the above sales contract, and there is no other evidence to acknowledge the payment of the remainder, and (3) the Plaintiff purchased the instant land within 18, 1980, 300,000,0000 on the 94,000,000,000).

D) Thus, since the acquisition time of the instant land constitutes a case where the payment date is unclear, the registration receipt date recorded in the register pursuant to Article 98 of the former Income Tax Act and Article 162(1)1 of the Enforcement Decree of the same Act shall be deemed the acquisition fraud.

3) 양도소득세 감면 적용 여부|

Of the issues of this case, the date of receipt of the registration of the above OOri 348(1), 385(3), and 387(4) is August 24, 1993. The date of receipt of the registration of the land 384(2) is December 2, 1994. The plaintiff left the Republic of Korea on May 8, 200 and resided in the United States until the time of transfer of the pertinent land. Accordingly, it is clear in calculating that the plaintiff's acquisition of the pertinent land of this case does not have eight years, and thus, the disposition of this case excluded from the application of the capital gains tax reduction and exemption rules is legitimate.

Therefore, the plaintiff's assertion on a different premise is without merit.

3. Conclusion

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