Whether the plaintiff has cultivated directly for 8 years or more, and whether it constitutes non-business land

The Plaintiff did not meet the self-employed requirement, which is a requirement for reduction of capital gains tax on the instant land, and the instant disposition is legitimate since it constitutes non-business land subject to exclusion from special deduction for long-term holding

Article 69(1) of the former Restriction of Special Taxation Act (Amended by Act No. 13560, Dec. 15, 2015)

2016Gudan1985 Revocation of Disposition of Imposing Capital Gains Tax

DoAA

*The Director of the Tax Office

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 68,397,50 (including additional tax) for the Plaintiff on July 1, 2015 shall be revoked.

1. Details of the disposition;

(i) On July 24, 2003, the registration of transfer of ownership in the Plaintiff’s name (the date of the registration was July 22, 2003) was completed on July 24, 2003 with respect to the land located in the development restriction zone and natural green area of odo, 00-00 to 785 square meters (hereinafter “instant land”). The registration of transfer of ownership in the name of the Plaintiff (the date of the registration was the donation on July 22, 2003) was completed on October 1, 2014 (the date of the registration was August 25, 2014; the transaction price was 625,00,000,000). The instant land was incorporated into a residential area on December 20, 2010 *** Public notice of approval of the Housing District Plan (Public Notice No. 2010-00,000) but was returned to a natural green area designated on December 9, 2014.

on November 11, 2014, the Plaintiff filed a preliminary return on capital gains accruing from the transfer of the instant land with respect to the Defendant on November 201, 2014, and filed an application for full reduction or exemption on the ground that the Plaintiff constitutes farmland at the discretion of eight years, as follows:

On July 1, 2015, the Defendant issued the instant disposition that corrected and notifies the Plaintiff of KRW 68,397,500 for the transfer income tax reverted to year 2014 on the ground that the instant land was transferred after three years from the date of incorporation into a residential area, and thus not only falls under the subject of exclusion from capital gains tax, but also falls under the requirement of exclusion from capital gains tax, and that it does not fall under the special deduction for long-term possession as non-business land.

Applicant filed an objection on October 2, 2015, which was dissatisfied with the instant disposition and dismissed, the Plaintiff filed an appeal with the Tax Tribunal on February 2, 2016, but the appeal was dismissed on April 29, 2016.

Facts that there is no dispute over the basis of recognition, Gap evidence 1, 7, Eul evidence 1, 2 and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

(1) The key issue of the instant case is: (a) whether the Plaintiff satisfies the requirements for reduction or exemption of capital gains tax by directly cultivating the instant land as farmland for at least eight years (in particular, whether the Plaintiff satisfies the requirements for self-sufficiency; and (b) whether it constitutes a non-business land subject to special deduction for long-term holding ( particularly whether it satisfies the requirements for self-reliance; and (c) whether it constitutes a special deduction for long-term holding even if it was transferred after two years from the date of incorporation into a residential area after the date of transfer into a development-restricted zone and green area among urban areas

As examined below, the plaintiff did not meet the requirements for reduction and exemption of capital gains tax on the land of this case, and it is judged that the land constitutes non-business land subject to exclusion from special deduction for long-term holding. Thus, the disposition of this case is legitimate, and the plaintiff's assertion of misunderstanding this

First, according to Eul evidence No. 3 (Report on Completion of Investigation of Transfer Income Tax), the plaintiff presented to the defendant's investigation officer in charge of the investigation of this case a certificate of confirmation on the preparation of the civil and the KDD (CC leader), three photographs, and receipts for purchase of agricultural materials not entered by the recipient, and the civil and the KD had affixed a seal upon the request of the citizen's '○○○ Real Estate (Oodong 384-9)' on the request of the defendant's investigation officer, but it is difficult to believe that the plaintiff could not support the credibility of the statement by other objective evidence, in light of the fact that the plaintiff refused the request of the investigation officer in charge of investigation to prepare such confirmation documents, it is insufficient to find that the above photographs and receipts alone are self-sufficient for not less than 8 years.

On the other hand, the plaintiff presented to this court additional evidence such as a certificate of cultivation (Evidence 6 of A), a certificate of fact on the preparation of KimB (Evidence 8-1 of A), a certificate of fact on the preparation of KimGG (Evidence 9-1 of A), a certificate of fact on the preparation of maximum HH (Evidence 13-1 of A), several airline photographs (Evidence 3-1, 2, and 8-3 of A), a photograph directly taken (Evidence 4-1, 5-1, 5, and 8-4 through 8 of A), and it is difficult to view that the plaintiff himself/herself himself/herself evaded the contents of each of the above documents by supporting the credibility of each of the above documents. However, it is difficult to view that each of the above documents directly provided the above photographs, such as a certificate of fact on the land of this case, and he/she directly evaded the contents of each of the above documents.

In addition, the plaintiff argued in the complaint of this case that the plaintiff acquired the land of this case with her husband as a part of building a 1949 family life which had been living in oo-dongo and had been her husband living in 20 years, and her husband's beliefed only for household affairs at the time of acquiring the land of this case. However, it is not easy for the plaintiff to cultivate the crops of this case directly in 200 o-dong o-dong o-dong o-dong o-dong o-dong o, but the power of new family life from the erogate and middle age coming from simple family life, and to find a new vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vele ves.

Second, the plaintiff asserts that "the land in this case is a large-scale development project **** Bogeumjari Housing project district (at least 17,367,175 square meters, land owners, 1,000 land owners). It is inevitable for the Korea Land and Housing Corporation to transfer the land at the expiration of three years from the date of transfer due to the phased implementation of the project or the delay in compensation, which is the project implementer." Thus, even if it is interpreted that the above provision can be applied to transfer the land to a third party without the plaintiff's claim (the defendant transfers the land to a project implementer, but it is reasonable to interpret that the above provision is applicable to transfer the land for public services to a project implementer. However, compared with the provisions of Article 77 of the Restriction of Special Taxation Act, the defendant's assertion that the above provision is not persuasive, if the transfer is made to a third party, it is not necessary to apply the above provision to the project implementer by phase, but it is not appropriate to interpret that it is not subject to the transfer requirement within three years from the date of transfer.

Third, the Plaintiff acquired the instant land in a development-restricted zone or green zone on July 24, 2013, and later two years have passed since it was incorporated into a residential area, and later transferred on October 1, 2014, which is apparent in the calendar, as long as it cannot be recognized that the Plaintiff was self-employed for more than one year retroactively from the date of incorporation into a residential area, it constitutes non-business land subject to exclusion of special long-term holding deduction (Article 104-3(1)1 (b) of the former Income Tax Act, Article 168-8(4) and (6) of the former Enforcement Decree of the Income Tax Act).

In this regard, in applying the provisions of Article 104-3 (2) of the former Income Tax Act, in case where the land falls under the non-business land due to the prohibition of use due to the provisions of laws after acquisition of the land or other inevitable reasons prescribed by the Presidential Decree, it may not be deemed the non-business land under the conditions as prescribed by the Presidential Decree. Article 168-14 (1) 1 and 2 of the former Enforcement Decree of the Income Tax Act, which was delegated by the Plaintiff, states that the land falling under the inevitable reasons as prescribed by the Ordinance of the Ministry of Strategy and Finance, after the acquisition of the land, shall not be deemed the non-business land under the conditions as prescribed by the Presidential Decree.

However, the above provisions mentioned by the Plaintiff can be exceptionally excluded from non-business land in cases where a farmland owner is unable to cultivate the relevant farmland due to statutory provisions or other inevitable reasons, and in this case, where the Plaintiff was incorporated into a residential area due to a sudden circumstance of implementation of large-scale development projects in the situation where the Plaintiff did not own land after acquiring the instant land located in a development-restricted zone and green zone, the Plaintiff cannot be viewed as an inevitable circumstance for the Plaintiff’s failure to cultivate the instant farmland (it does not mean that the Plaintiff was incorporated into a residential area). Thus, the Plaintiff’s above assertion cannot be accepted.

3. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.