Seoul Administrative Court-2017-Gu Group-62085 (2018.06.04)

Whether land constitutes land for non-business subject to exclusion from special deduction for long-term possession

The tax authority bears the burden of proving that the land for non-business subject to the exclusion of special long-term holding deduction is the land for non-business, and the land in this case is insufficient to be considered as farmland and there is no clear evidence

Article 104-3 of the Income Tax Act

2018Nu5299 Revocation of disposition to impose capital gains tax

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○ Head of tax office

November 15, 2018

December 6, 2018

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s disposition of imposing KRW 167,356,656 on the Plaintiff on April 26, 2016 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. cite of the reasons for the written judgment in the first instance;

The reasoning for this Court regarding this case is as follows, and thus, it is consistent with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

○ From 4 up to 3 lines shall be deleted.

○ 4 Then, the part "2 :00 :0 :00 :0 :00 :00 :0 :00 :0 :00 :00 :

○ The part "miscellaneous land or road (road zone)" of 8 lines at the bottom of 7 pages shall be drawn up as "miscellaneous land".

○ 8. The following shall be added below the 9 line:

Nord, the defendant asserts that part of the land of this case is planted and trees and trees are miscellaneous and grass, but it is merely a temporary change and it can be easily restored to the original state to farmland, so it is still farmland.

Even if the present state of farmland is changed, if it is merely a temporary change in the current state of farmland, and if it is possible to facilitate the restoration of farmland to its original state, it still constitutes farmland (see Supreme Court Decision 2002Du4693, Apr. 16, 2004). However, as seen above, the present state of the present land is not appropriate as farmland in view of its location, surrounding topography, environment, accessibility, gradient, etc., and if the present state of the present land is to remove trees and grass trees, which are people in the present land for farming, can easily occur, and it can not be deemed that the present state of the present land can easily be seen as farmland under social norms, in light of the following circumstances: (a) the present state of the present state of the present land being used for farming and the present state of the present land being used for farming and the present state of the present state of the present land being used for farming and the present state of the present state of the present land being used for farming and the present state of the present present state of the present land being used for farming.

○ 8 10 to 14 lines are as follows.

[2) Sub-committees

Although the land of this case is classified as a paddy field or a transition, it became a miscellaneous land from the time of construction of a concrete retaining wall from around 1996 to the time of construction of a road construction project. Therefore, according to the delegation under Article 104-3(1) of the former Income Tax Act, the disposition of this case excluding the special deduction for long-term holding as to the transfer of this case on the premise that the land falls under farmland stipulated in Article 104-3(1) of the former Enforcement Decree of Income Tax Act during the period stipulated in items of subparagraph 1 of Article 168-6 of the former Enforcement Decree

2. Conclusion

Since the judgment of the first instance is justifiable, the defendant's appeal is dismissed as it is groundless.