Seoul High Court Decision 2013Da3246

It is difficult to see that the farmland at issue was cultivated directly for not less than eight years, and the original disposition is legitimate.

The first disposition is legitimate because it is difficult to view that the acquiring time of the key farmland is 1980.0.0.0.0.0.0.0, the date of acquisition of the key farmland is 1980.0.0.00.

Article 69 of the Restriction of Special Taxation Act

2013Guhap4089 Revocation of Disposition of Imposing capital gains tax

KimA

○ Head of tax office

May 15, 2014

June 26, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On October 0, 2013, the Defendant issued a disposition of imposition of the total sum of the capital gains tax and its additional tax on the Plaintiff in 2009, the imposition of the capital gains tax for the year 2009, the special rural development tax and its additional tax is revoked.

1. Details of the disposition;

"A. On October 0, 1980, the Plaintiff completed the registration of ownership transfer with the intention of selling on October 0, 1970 under the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 3094, currently effective, hereinafter referred to as the "Special Measures Act"), with respect to OO-gun O-gun O-gun 1,729 square meters on October 0, 1980; "(b) The above land constitutes a 216 square meters per annum 169 square meters per annum, 216-1, 386 square meters per annum 216-2, 37 square meters per annum, 216-3, 97 square meters per annum, and each of the above land was divided into 200,000 won per annum 9,000 won per annum 20,0000 won per annum 9,0000 won per annum 20,000 won per annum 9,000.

D. The defendant found that the plaintiff did not report the transfer income tax on the farmland of this case and followed the investigation procedure. On October 0, 2013, the farmland of this case should be deemed to be the time of acquisition on October 0, 1980, which is the date of receipt of the registration, since it is not clear that the date of acquisition is the date of acquisition. The plaintiff did not meet the requirements of re-laws since October 0, 1981, which was after the acquisition of the farmland of this case, until the transfer of the farmland of this case, and it cannot be deemed that the plaintiff did not own the farmland of this case for not less than eight years." Thus, the plaintiff was exempted from the application of the provisions of reduction and exemption of the transfer income tax on the self-employed farmland of this case under the Restriction of Special Taxation Act to the plaintiff, by excluding the application of the reduction and exemption provisions of the transfer income tax to the OOO and its additional tax OOOO, special rural development tax, and additional tax OOO for this."

Facts without dispute over the basis of recognition, Gap evidence 1 (including paper numbers; hereinafter the same shall apply), Eul evidence 1, 2, 3, and 5, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the following circumstances, the instant farmland constitutes reduction or exemption of capital gains tax on self-arable farmland pursuant to Article 69(1) of the former Restriction of Special Taxation Act, and thus, the instant disposition should be revoked in an unlawful manner.

"1) The plaintiff received the farmland of this case from the deceased KimB (hereinafter "the deceased"), which was referred to October 0, 1970, from the deceased KimB, and completed the registration of ownership transfer for the reason of sale on October 0, 1970 under the Act on Special Measures for the Farmland of this case. Thus, it is presumed that the plaintiff acquired the farmland of this case on October 0, 1970, which was the date of the cause of the registration of ownership transfer, according to the presumption of the registration, and even if not, according to other evidence, it can be recognized that the plaintiff acquired the farmland of this case around that time. From that time, the plaintiff had resided in the location of the farmland of this case for eight or more years until October 0, 1981, while residing in the location of the farmland of this case, and had cultivated the farmland of this case directly from 8 years to 9 years of age of parents, even if the plaintiff resided in the farmland of this case, the plaintiff had not cultivated the farmland of this case for more than 10 years to 5 years of October 196, 198.

3) On October 0, 1956, the Deceased cultivated the farmland of this case without completing the registration of transfer of ownership after acquiring the farmland of this case from MaCC, and completed the registration of transfer of ownership on October 0, 1980. This can be deemed as a title trust with the farmland of this case to the Plaintiff. Since the Deceased directly cultivated the farmland of this case from around that time until October 0, 2006, it should be deemed as the period cultivated by the Plaintiff, a successor, pursuant to the former Enforcement Decree of the Restriction of Special Taxation Act.

B. Relevant statutes

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

C. Determination

1) Determination on the Plaintiff’s first argument

A) Timing to acquire the farmland of this case

Article 98 of the former Income Tax Act and Article 162 (1) of the Enforcement Decree of the same Act provide that "the date of acquisition shall be the date on which inheritance commences or the date on which inheritance commences in calculating gains from transfer of assets acquired by inheritance or donation." Since each of the above provisions is understood as determining the time of acquisition and the time of transfer of assets as of the date of actual acquisition of ownership in principle in the purport that excluding taxpayers from taxation and uniformly grasping taxable income. Thus, even if assets are acquired by legacy or donation without any separate provision, "the date on which inheritance, etc. can be deemed as having actually acquired ownership due to the occurrence of the effect of legacy, etc., unless otherwise provided, becomes effective" shall be deemed as the time of acquisition of assets: Provided, That in cases of donations not written in comparison with general contracts, it is not easy to objectively grasp the date of the donation contract, it is reasonable to view that "the date of acquisition" is the date on which the Plaintiff acquired farmland, which is the date of acquisition of farmland from 00 days before the transfer of rights, as stated in the register.

B) Whether a person has re-established for at least eight years;

Article 69 (1) of the former Restriction of Special Taxation Act provides that the tax amount equivalent to 100/100 of transfer income tax shall be reduced or exempted for the income accruing from the transfer of land directly cultivated by a resident prescribed by the Presidential Decree who resides in the seat of the farmland for not less than eight years, and as to the fact that a person who resides in the seat of the farmland and directly cultivates it, meets the requirements for exemption of transfer income tax, barring any special circumstances, the plaintiff who is the tax obligor shall be deemed to have the burden of proof. In this case, according to the health unit and evidence No. 4 of this case, while the plaintiff resided in the seat of the farmland of this case on October 0, 1981, he could recognize the fact that he resided in the OO, O, etc. since he moved in the relocation report to O, O, etc. on October 0, 1981, the plaintiff resided more than 200k away from the seat of the farmland of this case after October 0, 1981.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

2) Judgment on the second argument by the Plaintiff

The plaintiff asserts that, around October 00, 1956, he purchased the farmland of this case and completed the registration title of the land of this case in accordance with the Act on Special Measures for Special Measures on October 0, 1980, and the plaintiff cultivated the farmland of this case since 1957, while his parents formed the same household together with his parents. Thus, the plaintiff cultivated the farmland of this case for not less than eight years.

However, according to Article 10(1) of the Addenda to the Civil Act, even if the deceased purchased the farmland of this case from DaCC on or around October 00, 1956, the acquisition and loss of the real right to real estate by a juristic act prior to the enforcement of the Civil Act (the January 1, 1960) shall lose its effect unless it is registered within six years from the enforcement date of the Civil Act. Thus, even if the deceased purchased the farmland of this case on October 00, 1956, prior to the enforcement date of the Civil Act, and had ownership without completing the registration, the case does not prove that the deceased completed the ownership transfer registration of the farmland of this case before January 1, 1966, which is six years prior to the enforcement date of the Civil Act. It appears that the acquisition of the ownership of the deceased prior to the completion date of the ownership transfer registration in the future of the plaintiff, and only after October 1, 1980, the plaintiff newly acquired the ownership from the previous owner.

In light of the above legal principles, where a person has ownership to farmland and another person acquires ownership to such farmland after the forfeiture of ownership, it is reasonable to view that the period of up to eight years should be newly calculated after the acquisition of ownership again, such as the Plaintiff’s head, etc., even if the Plaintiff cultivated the farmland of this case from around 1957, such period may not be included in the period of up to eight years, which is the reduction or exemption of capital gains tax. Therefore, the Plaintiff’s assertion on this part is without merit.

3) Judgment on the third assertion by the Plaintiff

Even if it is based on the statements in the Evidence Nos. 1 through 7, 11 through 21, Eul evidence No. 3, 4, 6, and 7, it is insufficient to recognize that the plaintiff's transfer of ownership completed in the future of the plaintiff with respect to the farmland of this case was a title trust from the deceased. There is no other evidence to acknowledge this otherwise. Even if the deceased trusted the farmland of this case to the plaintiff, as seen in the above paragraph 2, even if he did not complete the registration of transfer of ownership with respect to the farmland of this case before January 1, 1966, six years from the date when the Civil Act enters into force, and it was completed after the deceased lost the effect of the acquisition of the deceased's ownership, and it cannot be deemed that the deceased acquired the ownership of the farmland of this case. The plaintiff's assertion on this part is without merit.

4) Therefore, the instant disposition that imposed capital gains tax and special tax for rural development (including additional tax) on the Plaintiff is lawful, by excluding the application of the provisions on reduction and exemption of capital gains tax on self-farmland under Article 69(1) of the former Restriction of Special Taxation Act to the transfer of the instant farmland.

3. Conclusion

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