Cho Jae-2015-China-235 (Law No. 10, 2015)

The land of this case does not fall under the reduction or exemption of capital gains tax on self-farmland.

It is difficult to recognize the need to take three-year time in returning the land of this case, and it does not constitute the reduction or exemption of capital gains tax on self-farmland.

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

2015Gudan842 Revocation of Disposition of Imposing capital gains tax

OO

O Head of tax office

November 02, 2016

November 09, 2016

1. On September 1, 2014, the part of the Defendant’s claim for revocation regarding OO members of the imposition of capital gains tax for the year 2012, imposed on the Plaintiff shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Cheong-gu Office

The Defendant’s imposition of the capital gains tax for the year 2012 against the Plaintiff on September 1, 2014 is revoked.

1. Details of the disposition;

A. On September 27, 2012, the Plaintiff transferred to AA an O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-site area (hereinafter “instant land”) acquired on March 6, 1987, and on the ground that the said land constitutes farmland for at least eight years under Article 69 of the Restriction of Special Taxation Act, which was acquired on October 209.

B. On September 1, 2014, the Defendant rendered a disposition to correct and notify the OOO of the capital gains tax belonging to the year 2012 (hereinafter “instant disposition”) to the Plaintiff on the ground that all the land transferred by the Plaintiff was not used as farmland at the time of the transfer date.

C. On November 11, 2014, the Plaintiff filed an appeal with the Tax Tribunal to the effect that the instant land among the transferred land was used as farmland at the time of transfer, and thus, the Plaintiff made a request for a reduction of capital gains tax as an OO won, but was dismissed on February 10, 2015.

[Reasons for Recognition] Uncontentious Facts, Gap evidence Nos. 1, 6, 7, Eul evidence Nos. 1, 2, and 7, the purport of the whole pleadings

2. Whether the part demanding cancellation of the duty amount without going through the procedures for the transshipment of the lawsuit in this case is legitimate

Where a person seeks cancellation of a disposition under tax-related Acts, he/she may not file an administrative litigation without going through a request for examination or adjudgment (Article 56(2) of the Framework Act on National Taxes). Since the Plaintiff only contests the imposition of the land of this case among the imposition of the capital gains tax on the four parcels that he/she transferred in the Tax Tribunal, and asserts that the part exceeding the OO won among the capital gains tax is revoked and changed, the non-appeal portion is unlawful because the Plaintiff did not file an appeal.

3. Whether the part of the instant disposition regarding the instant land is lawful

A. The plaintiff's assertion

The instant land was originally the same O-O-O land and one lot of land. On September 17, 2009, the said O-O land was divided and expropriated into Korea Land Corporation for the purpose of road expansion construction, and 2.7 meters high difference occurred between the road and the instant land due to the said road construction work. The Plaintiff was careful and prudented over several times to 3 years from 2010 to 2012. The Plaintiff’s disposal of the instant land was unlawful on April 2012, AAAA, who had a vinyl located in the neighboring place, expressed its intention to purchase and made a good quality mato be made into a vinyl land for the purpose of expanding the road. Accordingly, the Plaintiff’s disposal of the instant land was unlawful by transferring the instant land to 200 meters adjacent to the instant land to the Defendant’s temporary completion of construction work until October 5, 2012.

(b) Related statutes;

C. Determination

Under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring special circumstances, regardless of whether they are taxable or non-taxable requirements or tax reduction or exemption requirements, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fair taxation with the strict interpretation of the provisions that clearly consider preferential provisions among the requirements for reduction or exemption requirements (see Supreme Court Decision 2011Du20116, Dec. 13, 201).

Meanwhile, in order for the Plaintiff to be exempted from capital gains tax pursuant to Article 69(1) of the former Restriction of Special Taxation Act, Article 66(3) and (4) of the former Enforcement Decree of the Restriction of Special Taxation Act, etc.

The land should be cultivated directly for 8 years or longer, and the land not actually cultivated as of the date of transfer shall be farmland as of the date of transfer, and the land not actually cultivated as of the date of transfer shall not be deemed farmland as of the date of transfer, unless it is by the owner of the land or is temporarily in a state of temporary closure, and it does not constitute land subject to non-taxation of capital gains tax (see Supreme Court Decision 2006Du13183, Apr. 11, 2008). Furthermore, the burden of proving the above requirements for reduction or exemption lies on the person liable to pay tax (see Supreme Court Decision 90Nu6293, Apr. 23, 191). According to such legal principles, it is difficult to view that the Plaintiff’s assertion that the above land was not a three-year agricultural shed, even if it was based on the Plaintiff’s assertion, and thus, it is difficult to view that it was a three-year increase or decrease of the surface of the land to be used for 10 years or more.

4. Conclusion

Therefore, the part of the plaintiff's claim of this case which did not go through the pre-determination procedure is unlawful and dismissed, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.