Cho Gyeong 201 Jeon 1602 (Law No. 1011.06)

It is difficult to recognize land as being valuable for not less than eight years;

In light of the fact that the amount of income was earned while operating a secondhand shop during the period of possession of the land, and that the trees planted on the land, unlike trees cultivated to raise agricultural income, are in a non-discriminatory manner and are likely to have been neglected for a long time without being managed, it is difficult to recognize that the land was cultivated directly for at least eight years.

2011Revocation of disposition of imposition of capital gains tax, etc.

Maximum XX

The Director of the National Tax Service

October 24, 2012

November 14, 2012

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 000 won and special rural development tax of 000 won against the Plaintiff on February 9, 2011 shall be revoked.

1. Details of the disposition;

A. On July 11, 2001, the Plaintiff acquired 2,868 square meters (hereinafter “instant land”) prior to 000-8, Seo-gu, Seoan-gu, Seocheon-gu, Seocheon-gu, Seoul (hereinafter “Secheon-gu”). On August 25, 2009, the Plaintiff sold it to the Korea National Housing Corporation by consultation with land for public works.

B. On September 24, 2009, the Plaintiff reported the transfer income tax calculated by applying Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter “the Restriction of Special Taxation Act”) on the ground that the instant land constitutes one of one’s own farmland for at least eight years when filing a preliminary return on the transfer income tax to the Defendant.

C. The Defendant rendered a disposition of imposition of capital gains tax and special tax for rural development (hereinafter “instant disposition”) on February 1, 201, by applying the provision on capital gains tax reduction or exemption on land, etc. for public-service business under Article 77 of the Restriction of Special Taxation Act, not applying Article 69 of the Restriction of Special Taxation Act, based on the determination that the Plaintiff’s land in this case was hard to be deemed as

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on April 25, 201, but was dismissed on September 6, 2011.

[Ground of recognition] Facts without dispute, Gap I, Eul evidence 2, Eul evidence 1 to 3 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff cultivated Kim Yong-sik from July 2001 to May 2001, from around July 2001, and growing trees from around A in 2001. Therefore, the instant disposition, premised on the fact that the Plaintiff did not own the instant land, is unlawful.

B. Relevant statutes

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

C. Determination

Article 69(1) of the Restriction of Special Taxation Act provides that "any income accruing from the transfer of land prescribed by the Presidential Decree among land directly cultivated by a resident prescribed by the Presidential Decree residing in a location of land for not less than eight years, which is subject to agricultural income tax, shall be reduced by 100/100 of transfer income tax." Article 66(13) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21747 of Sep. 29, 2009) provides that "direct cultivation" means that any person who engages in the cultivation of agricultural products or the growing of perennial plants on his own land is constantly engaged in cultivating or cultivating not less than half of farming works on his own labor, or cultivating or cultivating them with not less than half of farming work on his own labor. It is reasonable to interpret or analogical interpretation of this mold as favorable to the taxpayer without any justifiable reason, and thus, it shall be deemed that the principle of no taxation without law is derived from the interpretation of the provisions that meet the requirements for tax exemption or reduction (see, e.g., Supreme Court Decision 20019Du39619.

As to this case, the following circumstances, which are acknowledged by comprehensively considering the purport of the entire pleadings in the statement Nos. 7 through 10, and 13, i.e., the Plaintiff’s assertion that it is difficult to recognize that the Plaintiff had no more than KRW 00 in the year 2001, KRW 00 in the year 2002, KRW 00 in the year 203, KRW 00 in the year 204, KRW 000 in the year 2005, KRW 00 in the year 206, KRW 00 in the year 207, KRW 00 in the year 2008, KRW 00 in the year 2008, and KRW 00 in the year 200 in the year 200, or KRW 8 in the year 200 in the year 209, and the Plaintiff’s assertion that the Plaintiff had no other reason to prove that it had no other reason to cultivate the farmland within the year 2008.

3. Conclusion

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