early 2010 Heavy2076 ( November 10, 2010)

Since land is not actually cultivated as of the date of transfer, it is not the land subject to reduction and exemption of capital gains tax.

Since the land is not actually cultivated as of the date of transfer, it is not the land subject to reduction or exemption of capital gains tax, and the value under the sales contract cannot be recognized as the actual transaction price, and there is no other data to verify the actual transaction price, and there is no illegality of disposition calculated by applying the conversion price

2011Guhap489 Revocation of Disposition of Imposing capital gains tax

XX

Head of Suwon Tax Office

August 18, 2011

September 29, 2011

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 40,177,437 of the capital gains tax of KRW 75,088,220 of April 6, 2010 against the Plaintiff in excess of KRW 40,177,437 of the capital gains tax of KRW 222,625,910 of the same date shall be revoked.

1. Details of the disposition;

A. (1) On March 28, 1980, the Plaintiff acquired 00 m2,380 m2,00 m2,00 m2,380 m2,00 m2,00 m2,000 m2,000 m2,000 m2,000 m2, and thereafter, on January 28, 2009, the land was divided into 00-0 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2,000 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2

(2) On March 27, 2009, the Plaintiff filed a preliminary return of capital gains tax on the ground that the land No. 1 of this case was self-ed for not less than eight years and the capital gains tax was reduced or exempted.

B. (1) On March 19, 2001, the Plaintiff acquired O0-0 00 m2,000 m2,000 m2,199 m2,00 m2,000 m2,000 m2,229 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,229 m2,00 m2,00 m2,00 m2,000 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00

(2) On April 30, 2009, the Plaintiff purchased the instant land prior to the instant subdivision in KRW 1,270,000,000. Based on the said actual transaction price, the Plaintiff made a preliminary return of capital gains tax by making the acquisition value of the instant land (=1,270,000,000 square meters x 1,900 square meters x 1,908 square meters 4,199 square meters).

C. As to the land No. 1 of this case on April 6, 2010, the Defendant denied the reduction or exemption as a self-farmland for at least eight years under the Restriction of Special Taxation Act, and subsequently corrected and notified the transfer income tax of KRW 34,911,790 on the land of this case on the basis of the actual transaction price reported by the Plaintiff and the conversion price of KRW 222,625,910 on the basis of the actual transaction price reported by the Plaintiff as the acquisition price (hereinafter “disposition of this case”).

D. On June 23, 2010, the Plaintiff filed an objection against the instant disposition, and filed an appeal with the Tax Tribunal on June 23, 2010, but the said claim was dismissed on November 10, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 6, Eul evidence Nos. 1, 10, 11, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The transfer income tax portion on the land No. 1 of this case

The Plaintiff directly cultivated the instant land No. 1, which is farmland, for 29 years. The Defendant denied the Plaintiff’s application for reduction of capital gains tax by deeming that the instant land No. 1 is not farmland, but farmland, but the Defendant voluntarily parked part of the instant land No. 1.

(2) The portion of capital gains tax on the land No. 2 of this case

The Plaintiff loaned money equivalent to KRW 1.2 billion to the head of the Si/Gun/Gu operating the sales business. As the head of the Si/Gun/Gu made it difficult for the head of the Si/Gun/Gu to repay the above loan, the Plaintiff calculated the amount equivalent to the above loan amount as KRW 1,270,000,000, which is the amount equivalent to the above loan amount. Therefore, even though the actual transaction value of the land before the division is obvious to KRW 1,270,00,000, the imposition of capital gains tax on the land of this case

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) The transfer income tax portion on the land No. 1 of this case

Article 66 (5) of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21565, Jun. 26, 2009; hereinafter the same) provides that "land subject to reduction or exemption of transfer income tax shall be based on farmland as of the date of transfer under Article 162 of the Enforcement Decree of the Income Tax Act."

Therefore, even if the public record is farmland, the land which is not actually cultivated as of the date of transfer shall not be deemed farmland as of the date of transfer, unless it is in a state of temporary closure, regardless of whether it is by the landowner’s own or by another person, and thus, it does not constitute farmland subject to non-taxation of capital gains tax (see Supreme Court Decision 91Nu7422 delivered on November 12, 191).

However, according to the records in Eul evidence Nos. 2 through 5, Eul evidence Nos. 6-1 and 2, the use of land of the Korea Land and Housing Corporation on May 23, 2008 and June 23, 2008 as a result of the use of land of the Korea Land and Housing Corporation on May 23, 2008 and June 23, 2008, it is confirmed that the land of this case is a river with the 000-0 marri 34mar in the 1st of the land of this case, and that the 1st of this case is a miscellaneous land and a road with each aerial photography taken around October 2006 and around August 2009, it is not deemed that the land of this case is not a farmland, and the plaintiff's assertion that the land of this case is not a 6th of 200 marri-ri, which is adjacent to a factory building, etc., is not a temporary aggregate of the land tax of this case.

(2) The portion of capital gains tax on the land No. 2 of this case

According to Article 97 (1) 1 of the Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009), the acquisition value to be deducted as necessary expenses in the calculation of transfer margin shall be based on the actual transaction value, but if it is impossible to confirm the actual transaction value, it shall be based on the transaction example, appraisal value or conversion value prescribed by the Presidential Decree.

Therefore, in this case, the issue is whether or not the actual transaction price of the plaintiff can be recognized. The following circumstances, i.e., evidence as mentioned above, evidence Nos. 5 through 8, and evidence Nos. 9 added the purport of the entire pleadings, i.e., the plaintiff and headA were related to the third degree; ii) the sales contract No. 1,270,000,000 won for the second land between the headA and the plaintiff ("the sales contract of this case" No. 5") were stated in the sales contract No. 1,270,00,000 won for the part payment 690,000,000 won for the above 200,000 won for the real transaction price, and it is hard to find that the defendant's 1,200,000 won for the above 20,000 won for the loan of the plaintiff No. 1,29,000 won for each of the above reasons.

3. Conclusion

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