Diab01 Schedule 2790 ( November 02, 2011)

This disposition is legitimate when the date of receipt of ownership transfer registration is transferred due to unclear payment date.

There is no objective data to verify that the price was actually paid on the date of the remainder payment under the sales contract, and there was no application for land transaction permission before or after the date of the settlement of the price, and the date of the payment is unclear in light of the fact that the Plaintiff voluntarily stated the date of receipt of the transfer registration as the date of the transfer of ownership at the time of the transfer

2011Guhap3843 Revocation of Disposition of Imposing capital gains tax

OraA

Head of Changwon Tax Office

May 14, 2013

June 11, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 000 on January 6, 2011 against the Plaintiff on January 6, 201 shall be revoked.

1. Details of the disposition;

A. On September 2, 1991, the Plaintiff completed the registration of ownership transfer on the ground of the sale on August 30, 1991, with respect to the land of 1,010 square meters (hereinafter “instant land”).

B. On February 10, 2010, the Plaintiff completed the registration of ownership transfer in its name on each of the instant one-half shares of Nonparty D, and KimF on each of the instant land to Nonparty D, and KimF on each of the instant land on January 31, 2010.

C. On May 7, 2010, the Plaintiff filed an application for capital gains tax reduction or exemption with the Defendant on the ground that the date of transfer of the instant land was stated as February 10, 2010 and the Plaintiff, and the instant land was self-feased for at least eight years.

D. From the date of the Plaintiff’s acquisition of the instant land to May 6, 2004, the Defendant exempted capital gains tax by deeming the instant land as its own farmland and reduced or exempted as it was incorporated into a residential area, but, on February 10, 2010, the date from the date of incorporation to the date of receipt of the ownership transfer registration in the name of the leastD as to the instant land, and KimFF, the date of receipt of the ownership transfer registration in the name of Kim FF, the Defendant denied the reduction or exemption of treasury farmland, thereby correcting and notifying the Plaintiff of KRW 00 of capital gains tax for the year 2010 (hereinafter “instant disposition”).

E. On August 5, 2011, the Plaintiff appealed to the instant disposition and filed a request for an inquiry with the Tax Tribunal on August 5, 201, and was dismissed on November 2, 201.

[Ground of Recognition] The non-contentious facts, Gap evidence 2, Eul evidence 1 to 3, and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The time of the transfer of the instant land was deemed to be October 18, 2004 when the liquidation of the purchase price of the instant land was completed, and the Defendant imposed capital gains tax on February 10, 2010, which was the date of receipt of the ownership transfer registration of the instant land, on the assumption that the transfer date was the time of transfer.

2) As the Plaintiff transferred the instant land to the lowestD, and KimFF while making up for a period of eight years or more, the capital gains tax reduction and exemption provisions on self-farmland should be applied.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) First, we examine the time of transfer of the instant land.

Article 98 of the former Income Tax Act (amended by Presidential Decree No. 10408, Dec. 27, 2010) and Article 162 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22034, Feb. 18, 2010) provide that the date of the settlement of the price shall be the date of the receipt of registration, the date of receipt of registration, or the date of entry into the registry, the registry, or the registry, if the date of the settlement of the price is unclear. In full view of the following circumstances, each of the evidence mentioned above and each of the above evidence, Gap, and evidence No. 1 and 6, and evidence No. 11 are recognized as the date of the receipt of the ownership transfer registration, and thus, it is legitimate for the defendant to impose capital gains tax on the date of the transfer of the land in this case.

① Each real estate sales contract (No. 1 and No. 11) on the land of this case submitted by the Plaintiff stated 00 won of the purchase price of this case, and the remaining payment date of the purchase price of this case as of October 18, 2004 or August 31, 2004 (Evidence No. 11). However, there is no objective evidence, such as financial transaction details verifying that the Plaintiff was actually paid the purchase price from the purchaser until the payment date of the balance, and no explanation was presented to the Plaintiff on October 18, 2004, and it is impossible to determine the payment date of the purchase price of this case as of October 18, 2004 (the down payment and intermediate payment received from the purchaser in cash, and the Plaintiff’s creditor received 00 won from the purchaser on October 18, 2004, and it is difficult to recognize that the Plaintiff was actually paid the purchase price to the Plaintiff’s O and the Plaintiff’s personal cashier, other than the above evidence presented by the Plaintiff.

② The instant land was designated as a land transaction permission area from November 25, 1998 to May 31, 2009, but there was no application for land transaction permission from the Plaintiff and the buyer before and after October 18, 2004, which was the date of settlement of the price asserted by the Plaintiff.

③ The Plaintiff voluntarily declared the transfer date to the Defendant on February 10, 2010 at the time of reporting the transfer income tax to the Defendant.

2) Next, we examine whether the provisions on reduction and exemption of the transfer income tax on the instant land can be applied to the self-arable farmland.

The burden of proving the fact of directly cultivating the transferred land as a requirement for reduction of capital gains tax on self-arable land is against a taxpayer who asserts reduction or exemption of capital gains tax (see, e.g., Supreme Court Decision 94Nu996, Oct. 21, 194). The certificate of cultivation (No. 7-1) submitted by the Plaintiff confirms only the conclusion that the Plaintiff cultivated the instant land without specifically mentioning the Plaintiff’s cultivation of the instant land by a certain method, and the farmland ledger (No. 7-2) states that “the subject of confirmation of cultivation” as to the instant land, and the testimony of the witness maximum Y is to be well known at any time when the Plaintiff cultivated the instant land, and there is no other evidence to acknowledge this. Therefore, this part of the Plaintiff’s assertion is without merit.

3) Therefore, the instant disposition is lawful.

3. Conclusion

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