early 2012 Heavy0147 ( October 14, 2012)

No land may be deemed as nominal trust or directly cultivated for at least eight years;

There is no evidence to support the fact that the land was trusted by a clan, and it can be recognized that the land was cultivated directly for not less than eight years because there is no evidence to support the fact that the land was trusted by a clan, and the fact that the land had a third party gather or use the farmland in return for managing a mountain.

Article 69 of the Restriction of Special Taxation Act

Article 14 of the Framework Act on National Taxes

2012Guhap575 Revocation of Disposition of Imposing capital gains tax

Shin XX

Chuncheon Director of the Tax Office

August 24, 2012

September 21, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing capital gains tax of KRW 000 for the year 2009 against the Plaintiff on December 5, 2011 is revoked (the date of disposition stated in the complaint’s claim and the amount of tax seem to be written in error).

1. Details of the disposition;

A. On November 16, 1995, the Plaintiff completed the registration of ownership transfer on the ground of sale on September 30, 1995 with respect to the land of this case on November 16, 1995, the Plaintiff completed the registration of ownership transfer on the ground of inheritance by agreement and division with respect to the land of this case on March 19, 2009.

B. On February 23, 2009, the Plaintiff sold 1/2 shares of each of the instant land to SongCC and DoD, and completed each registration of ownership transfer on March 19, 2009.

C. On May 31, 2010, the Plaintiff filed a preliminary return of capital gains tax on the instant land with respect to the Defendant, and filed an application for reduction or exemption of capital gains tax on the ground that the Plaintiff and KimA around August 8, 201 (hereinafter “instant disposition”). However, the Defendant denied the reduction or exemption of capital gains tax on the grounds that the Plaintiff could not be recognized as having cultivated the instant land for not less than eight years, and issued a disposition imposing capital gains tax of 000 won on the Plaintiff for the year 2009 (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on December 13, 201, but was dismissed on March 14, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, Eul evidence Nos. 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant land is a new clan land of the clan, and the Plaintiff’s husband, KimAA, a clan, was title trust in the future. The Plaintiff merely transferred the status of the trustee from KimA, and is not a taxpayer for capital gains tax on the instant land.

2) The Plaintiff, along with KimA, has cultivated the instant land for about 28 years from around 1968 to around 1996, and thus, the transfer income tax should be exempted in accordance with the provisions on reduction and exemption of transfer income tax on self-Cultivating farmland under the Restriction of Special Taxation Act.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to the assertion that a title trustee is not liable for tax payment

In light of the substance over form principle, if a title truster transfers real estate to a third party and income from such transfer was attributed to the title truster, the person liable to pay capital gains tax under the substance over form principle is not the person liable to pay the capital gains tax (see Supreme Court Decision 96Nu6387, Oct. 10, 1997); however, it is insufficient to recognize that KimA received the title trust of the land of this case from the clan of the same clan, the title truster, the subject of the transfer, was not the person liable to pay the capital gains tax (see Supreme Court Decision 96Nu6387, Oct. 10, 197); however, there is no other evidence to acknowledge that KimA received the title trust of the land of this case from the clan

2) Determination as to the assertion that the instant land was self-defensed for at least eight years

According to Article 69 of the Restriction of Special Taxation Act (amended by Act No. 921, Jan. 1, 2010); Article 66 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22037, Feb. 18, 2010); where a resident living in a Si/Gun/Gu where farmland is located or in an area in a Si/Gun/Gu adjacent thereto has cultivated directly for not less than eight years from the time of acquiring the farmland until the time of transferring the farmland, the amount of tax equivalent to 100/100 of the capital gains tax on income accruing from the transfer of the farmland shall be reduced; and in such case, “direct cultivation of the farmland” means that a resident is constantly engaged in cultivating crops or growing perennial plants on his own farmland or growing perennial plants with his own labor; and the fact that the transferor of the farmland is not obliged to actively prove that he acquires only 1/2 or more of the farmland at the time of his own cultivation except for the case where the transferor of the farmland acquires it (see Supreme Court Decision 200Da3194, Jul. 19, 19, 194, etc.

In light of the above legal principles, as seen earlier, as to whether the Plaintiff directly cultivated the instant land for 8 years or longer from the time of acquiring the instant land, it is merely a fact that the Plaintiff completed the registration of ownership transfer as to the instant land on November 16, 1995. However, it is insufficient to acknowledge that the Plaintiff directly cultivated the instant land for 8 years or longer only with Gap evidence Nos. 3 and 6 and testimony at KimB and Kim XX (except for the following part trust), and there is no other evidence to acknowledge otherwise. Rather, in full view of the purport of the entire pleadings, the Plaintiff did not claim that the Plaintiff directly acquired the instant land from the 6th day of July 16, 201 to the 19th day of March 19, 209 to the 19th day of March 19, 209, and that the Plaintiff acquired the instant land from the 5th day of the instant land to the 19th day of the instant dry field cultivation, or that the Plaintiff acquired the instant land from the 16th day of the instant land.

3. Conclusion

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