Examination-transfer-2017-014 ( October 10, 2018)

8. Voluntary reduction and exemption for older persons;

Although the transferor should actively prove the fact of the transferred land, it is not sufficient to recognize that the plaintiff was "self-defensive for not less than eight years" in the land of this case.

Article 69 of the former Capital Gains Tax Act (Reduction or Exemption of Capital Gains Tax for Self-Cultivating Farmland)

Daejeon District Court-2018-Gu Group-100580 ( August 22, 2019)

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○ Head of tax office

2019.05.23

2019.08.22

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 53,621,152 against the Plaintiff on January 2, 2017 is revoked.

1. Details of the disposition;

A. On December 28, 2002, the Plaintiff acquired the instant land with the same 00-0 m22, 655 m2 (hereinafter referred to as “instant land”) prior to 00-00 m2, 2000 m2 (hereinafter referred to as “the instant land”) and sold the adjoining land on May 31, 2012, and on April 30, 2015, the instant land was sold to each Kim○ and one other, respectively.

B. The Plaintiff filed an application for reduction or exemption of capital gains tax pursuant to Article 69 of the Restriction of Special Taxation Act on the ground that the Plaintiff’s land in this case was self-defluent for at least eight years, and the Defendant, on January 2, 2017, excluded the application of capital gains tax reduction or exemption on the ground that the Plaintiff did not meet the requirements for self-defluence for at least eight years, and imposed capital gains tax on KRW 53,621,152 (hereinafter “instant disposition

C. The Plaintiff filed a petition for review against the instant disposition, but the said claim was dismissed on January 12, 2018.

[Reasons for Recognition] Unsatisfy, Gap evidence 1-1, 1-2, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff resided in a building adjacent to his spouse and sold the instant land for at least eight years, it constitutes reduction or exemption of capital gains tax. Even if it is not so, since the actual owner of the instant land is the Plaintiff’s spouse, capital gains tax should be imposed on the Plaintiff’s spouse. However, the instant disposition is unlawful on a different premise.

B. Determination

1) Whether the Plaintiff was self-employed for at least eight years

The facts of self-reliance on the transferred land should be proved actively by the transferor (see, e.g., Supreme Court Decision 94Nu996, Oct. 21, 1994). The evidence submitted by the plaintiff alone is insufficient to recognize that the plaintiff was "self-defense for not less than eight years" in the land of this case. The plaintiff's assertion on this part is without merit.

2) Whether title trust is held

On the other hand, since a person registered as an owner of real estate is presumed to have acquired ownership through legitimate procedures and causes, the fact that such registration was based on title trust has the burden of proof against the claimant (see, e.g., Supreme Court Decision 2007Da90883, Apr. 24, 2008). The evidence submitted by the plaintiff alone is insufficient to recognize that the plaintiff was entrusted with the title of the land in this case by his spouse, and there is no other evidence to acknowledge this differently, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the disposition of this case is legitimate, so the plaintiff's claim is dismissed. It is so decided as per Disposition.