Seoul High Court 2011Nu36717 (Law No. 15, 2012)

Board of Audit and Inspection, 2011,0010 ( October 13, 2011)

Since it is not deemed that the forestry was engaged in or the forest trees were subject to separate transactions, the entire amount constitutes capital gains.

If there was no growing activity to produce forest trees or no feasibility is recognized even if the forest trees were transferred along with the forest land, income generated from the transfer of the forest trees shall be subject to the transfer income tax, except in extenuating circumstances to deem that the forest trees were subject to transactions separate from the forest land.

2012Du15715 Revocation of Disposition of Imposing Transfer Income Tax

IsaA

Samsung Head of Samsung Tax Office

Seoul High Court Decision 2011Nu36717 Decided June 15, 2012

September 12, 2013

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Article 19(1) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009) provides that "income accrued from the forestry" under subparagraph 1 while listing the income subject to business income. Meanwhile, the main sentence of Article 29 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034 of Feb. 18, 2010; hereinafter referred to as the "former Enforcement Decree of the Income Tax Act") delegated by Article 29 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034 of Feb. 18, 2010) provides that "the scope of businesses under the provisions of each subparagraph of Article 19 of the Act shall be based on the Korea Standard Industrial Classification, except as otherwise provided in this Decree." The Korea Standard Industrial Classification provides that "the amount of income from the forest is excluded from the transfer of the forest land and the income from the transfer of the forest land shall not be calculated."

In light of the language, purport, structure, etc. of these regulations, in cases where forest trees are transferred along with forest land, it is reasonable to view that, in principle, income generated from the transfer of forest trees constitutes business income, only the remaining income, excluding that generated from the transfer of forest trees, is subject to taxation of capital gains tax following the transfer of forest land. In such cases, whether income generated from the transfer of forest trees constitutes business income ought to be determined in accordance with ordinary social norms by taking into account whether activities for growing for the production of forest are conducted for profit, the substance, scale, period, mode, etc. of the forest, to the extent that business activities can be seen as business activities, and whether there was continuity and repetition of the forest trees, even if the forest trees were transferred along with forest land, barring any special circumstance to deem that the forest trees was subject to transactions separate from the forest land, the entire income generated from the transfer of forest land is subject to taxation of capital gains tax, and whether the forest land and the forest are subject to assessment of neighboring forest land should be objectively determined by comprehensively taking into account the transaction purpose of the parties, details of the forest land, and its present value.

2. In full view of the circumstances as indicated in its holding, such as the number and nature of standard trees remaining in the forest of this case, the Plaintiff’s expenses incurred in growing the said standard trees, the contents of the sales contract of this case, and the amount of business income for the transfer of forest trees reported by the Plaintiff, etc., the lower court determined that the Plaintiff cannot be deemed to have continuously and repeatedly planted, tending, growing, and protecting the standard trees in the forest of this case in order to produce forest trees for profit-making purposes, and that it cannot be deemed that the Plaintiff did not have separately sold the forest of this case.

3. Examining the aforementioned legal principles and records, we affirm the judgment of the court below as just. Contrary to the Plaintiff’s grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, or by failing to exhaust all necessary deliberations, etc., which affected the conclusion of the judgment.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.