early 2010 Heavy3525 ( October 10, 201)

It is recognized that the family members living or living together with the family members in the same household have been self-employed for at least eight years.

At the time of the acquisition of land, a high school student who had his/her parents in another city and had his/her parents in another city, but had his/her parents in the weekend or vacation, and had his/her parents in his/her house and resided with his/her parents in the location of the land before the transfer of his/her resident registration after his/her graduation from a university. Therefore, it is reasonable to deem that he/she directly or by his/her family

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

2011Gudan1250 Revocation of Disposition of Imposing capital gains tax

Park XX

Head of Namyang District Tax Office

November 14, 2011

November 28, 2011

1. The Defendant’s disposition of imposing KRW 31,195,820 on the Plaintiff on August 5, 2010 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On March 16, 1957, the Plaintiff acquired Y 4,000 m2 (hereinafter “instant land”) and kept after completing the registration of ownership transfer on September 26 of the same year, and transferred it to compulsory auction on April 10, 2004, but did not report and pay the transfer income tax.

B. On May 2010, the Defendant notified the Plaintiff of the pre-announcement of capital gains tax for the year 2004, and the Plaintiff filed a request for pre-assessment review on May 28, 2010, but was non-adopted on June 28, 2010.

C. On October 1, 2010, the Defendant decided and notified the Plaintiff of KRW 31,195,820 of the transfer income tax reverted to the year 2004 (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal, but was dismissed on February 10, 201.

[Reasons for Recognition] In the absence of dispute, Gap evidence Nos. 1-2-1, 2-2, Eul evidence Nos. 1-2 and 2-2, the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Since the Plaintiff owned the instant land for 47 years, the instant disposition that excluded the Plaintiff from capital gains tax reduction or exemption for self-Cultivating farmland is unlawful, even though it is necessary to reduce capital gains tax pursuant to Article 69 of the Restriction of Special Taxation Act.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

Article 69 (1) of the former Restriction of Special Taxation Act (amended by Act No. 7322 of Dec. 31, 2004) provides that capital gains tax on income accruing from the transfer of land directly cultivated for not less than eight years by a resident prescribed by the Presidential Decree residing in the seat of a farmland shall be reduced or exempted, and Article 66 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 18704 of Feb. 19, 2005) provides that "resident who resides in the seat of farmland as prescribed by Presidential Decree" in the main sentence of Article 69 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act means a person who cultivates the relevant farmland while residing in a Si/Gun/Gu where farmland is located, a Si/Gun/Gu area adjacent to the said region.

The legislative intent of reducing or exempting capital gains tax for self-employed farmland for not less than eight years is to reduce the tax burden due to the transfer of farmland as part of land farming policies and thus, the owner of the farmland. Here, the term “self-arable farmland” includes not only cases in which a person himself/herself cultivates but also cases in which a person gets his/her family living or living together with the same household (see, e.g., Supreme Court Decisions 94Nu11859, Feb. 3, 1995; 89Nu7412, May 11, 1990).

In full view of the statements in Gap evidence 3-1, Gap evidence 4-1, Eul evidence 6-1 through 4, Gap evidence 6-1 through 3, Eul evidence 8 and 9, and the purport of the entire pleadings in the testimony of Park Jong-A. The plaintiff resided with his parent on the land of this case from Y-dong 00 to 1968, and on October 20, 1968, the plaintiff was a senior student at the time of acquisition of the land of this case, and the plaintiff was not a member of the XX University located in Seoul from March 1960 to February 1964, according to the facts that the plaintiff moved his residence to 90-000, Seodaemun-gu Seoul National University from 1968 to 19-7, the plaintiff was recognized to move his parent's residence to 1,500,000, and the plaintiff transferred his residence to 1,500 to 5,000,000,000.

Therefore, the disposition of this case, which excluded the application of the special provisions of this case on different premise, is unlawful.

3. Conclusion

Thus, the plaintiff's claim of this case is justified, and this is accepted.