Early High Court Decision 2008J2617 ( November 11, 2008)

Appropriateness of the assertion that the farmland had been self-refised for not less than eight years;

It is difficult to see that the wife and his children did not reside at the seat of the land during the period in which the Plaintiff claimed that he had resided in the seat of the land, and the Plaintiff was self-employed in light of personal business and religious activities

The contents of the decision shall be the same as attached.

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 107,380,000 for the Plaintiff on January 11, 2008 shall be revoked.

1. Circumstances of the disposition;

A. The Plaintiff, acquired on June 7, 1976, owned the land of this case 963 m2 m2 (hereinafter “the land of this case”) and the land of this case 1,964m2 (hereinafter “non-land of this case”) acquired on May 9, 1994, the Plaintiff transferred the land to Ghoho on December 12, 2006, while filing a preliminary return on tax base of capital gains tax to the Defendant on February 27, 2007, on the ground that the land of this case constitutes “self-farmland land of not less than eight years” under Article 69(1) of the Act on Special Cases concerning Taxation.

B. On January 11, 2008, the Defendant rejected the Plaintiff’s application for reduction of or exemption from capital gains tax on the grounds that the Plaintiff could not be deemed to have resided in the location of the instant land for more than eight years, and subsequently confirmed that the capital gains tax for the year 2006 following the transfer of the instant land and the instant non-owned land was KRW 231,538,681, and imposed and notified KRW 107,380,000 after deducting the already paid KRW 131,53,286 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff resided at the location of the instant land for not less than eight years, it was unlawful to exclude capital gains tax reduction or exemption, deeming otherwise.

(b) Related statutes;

It is the same as the entry of the attached statutes.

C. Determination

(1) The principle of strict interpretation derived from the principle of no taxation without law is applicable not only to the cases meeting the taxation requirements, but also to the cases meeting the requirements for non-taxation and tax reduction and exemption. It is reasonable to expand or interpret the requirements for non-taxation or tax exemption and exemption as favorable to the taxpayer without any justifiable reason, which leads to a result contrary to the principle of no taxation, which is the basic ideology of the tax law (see, e.g., Supreme Court Decision 2005Da19163, May 25, 2006). Therefore, it is not permissible to allow the assertion of farmland (see, e.g., Supreme Court Decision 92Nu1893, Jul. 13, 1993).

(2) As to the instant case, it is difficult to see the Plaintiff’s assertion that the Plaintiff had resided at the location of the instant land for 1 to 19 years, based on the following circumstances, i.e., evidence Nos. 1, 2, 3, 9, 20, Eul evidence Nos. 1, 5-1 through 3, evidence Nos. 6-1 and 2, evidence Nos. 1 to 5-2, and evidence Nos. 1, 1, 1976 to 18, and evidence Nos. 4, 1, 1994 to 19, 2, and 9-1, 3, and 9-1, and 9-1, respectively, for the following reasons: (a) the Plaintiff’s resident registration card No. 1 was located at the location of the instant land for 1 to 19-1, 3, and 9-1, and 9-1, respectively; or (b) the Plaintiff’s new address at the seat of the instant land.

3. Conclusion

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

shall be ruled.