Cho High Court Decision 2009J3531 ( December 18, 2009)

Appropriateness of the assertion that the land was cultivated directly

Although business registration has been made under the name of the husband, it is reasonable to view that the husband cultivated the farmland ledger and the rice income preservation direct payments, etc.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 121,960,000 against the Plaintiff on July 1, 2009 shall be revoked.

1. Circumstances of the disposition;

A. On March 25, 2002, the Plaintiff donated her husband’s ○○○-dong 115-2, 115-2, and 6,698 square meters (hereinafter “instant land”).

B. On September 11, 2006, the Plaintiff purchased 337-1 square meters prior to 00 ○○○○-do 337-1 square meters, and 1,983 square meters at 00 ○○-si 354-5 square meters on October 2, 2007. On October 27, 2006, the Plaintiff transferred the instant land to ○○○○○○.

C. On December 14, 2006, the Plaintiff filed an application for reduction or exemption of capital gains tax pursuant to Article 70 of the Restriction of Special Taxation Act on the ground that the Plaintiff’s transfer of the instant land and the purchase of each of the instant land at ○○○○ City constitutes farmland substitute land. However, from September 21, 2001, the Defendant refused the said application on the ground that the Plaintiff was operating ○○○○ Dong 149-21, but did not directly cultivate the instant land for three years. On July 1, 2009, the Plaintiff imposed capital gains tax of KRW 121,960,000 on the Plaintiff (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 1, 2, Eul 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's principal

From September 21, 2001, the Plaintiff opened a business registration name of the above △△△ bank from around September 21, 2001. However, the Plaintiff, the husband of the Plaintiff, was operating △△ bank, and the Plaintiff was directly cultivated the instant land. Therefore, the instant disposition was unlawful.

(b) Related statutes;

It shall be as shown in the attached Form.

C. Determination

The fact that the Plaintiff acquired the ownership of the instant land on March 25, 2002 and owned it for three years or more, and transferred it, does not have any dispute between the parties, and eventually, the issue of the instant case is whether the Plaintiff owned the ownership of the instant land and directly cultivated the instant land for three years or more in accordance with Article 67(2) of the former Restriction of Special Taxation Act (amended by Presidential Decree No. 20720, Feb. 29, 2008).

Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 4 and Eul evidence Nos. 2 through 9, the plaintiff's husband operated retail business of precious metals, etc. from around November 25, 1984 to ○○○○○-dong 158-1 with the trade name of △○○-dong 158-1, and closed the business around September 12, 2001. The plaintiff opened a new business registration for ○○○-dong 149-21, a place different from the situation of September 21, 2001, and made a report of value-added tax in the name of the plaintiff from the time of the establishment of a new business registration for ○○-dong 149-21, a place, and entered the land in the farmland ledger issued by ○○-si 1, 2006, which is the plaintiff's husband, or entered in the farmland ledger that he purchased 0 or more of the above land in 200-Ga 200.

Although the Plaintiff claims that the Plaintiff cultivated the instant land, there is no evidence to believe that the Plaintiff’s testimony as indicated in Gap’s 11 and 15 and the witness HeB’s testimony as shown in the above, and there is no other evidence to acknowledge it.

Therefore, the disposition of this case, which applied the fact that the plaintiff did not directly cultivate the land of this case, is a proper law.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed for reasons.