Whether land category on the public register falls under the category of non-taxation of capital gains tax for land not actually cultivated as of the date of transfer (negative)

Even if land on the public register is farmland, 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 suspension or temporary suspension or temporary suspension, and it does not constitute land subject to non-taxation of capital gains tax.

Article 5 subparagraph 6 (d) of the Income Tax Act, and Article 14 (3) of the Enforcement Decree of the same Act.

Supreme Court Decision 88Nu6252 decided Feb. 14, 1989 (Gong1989,437) 89Nu664 decided Feb. 13, 1990 (Gong1990,683) 89Nu5409 decided Feb. 13, 1990 (Gong190,689)

Plaintiff

Head of North Busan District Tax Office

Busan High Court Decision 90Gu1458 delivered on June 26, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the Plaintiff’s ground of appeal.

Article 5 subparagraph 6 (d) of the Income Tax Act and Article 14 (3) of the Enforcement Decree of the same Act provide that the transfer income subject to non-taxation under subparagraph 6 (d) of the same Article and Article 14 (3) of the Enforcement Decree of the same Act shall be limited to the transfer income of land which has been cultivated by themselves for not less than 8 years and which is farmland as of the date of transfer. Thus, 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 the land is actually used as farmland by the landowner or by another person, or is temporarily in a state of temporary closure, and it shall not be deemed farmland as of the date of transfer

According to the reasoning of the judgment below, the court below, based on evidence, concluded a contract between the land owner including the plaintiff et al. on February 20, 1985 and the land owner including the plaintiff et al. to reclaim the above land when the plaintiff acquired the land of this case and cultivated it as a rice field. Since the land of this case and the land of this case were located in a low area, the Busan City Mayor did not properly cultivate water at flood. The plaintiff et al. concluded a contract between the land owner et al. on April 20, 1985 and the land owner et al. to use the above land as farmland after the reclamation and compensate for losses caused by the plaintiff et al. to use the above land as farmland during the above reclamation period. The court below's decision that the plaintiff et al. transferred the land of this case to the non-party et al. for a period of not less than 1, 1988 because of the fact that the plaintiff et al. was not actually al. to use the land of this case for the above 3 years after the above reclamation period.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-sung (Presiding Justice)