Early High Court Decision 2009Du0172 ( October 13, 2009)

Whether a person has been self-employed for at least eight years;

The fact that other income has been earned is a reason to suspect the fact of self-reliance, but does not interfere with the above recognition when considering the size of such income and the relationship between the employer and the plaintiff as well as the nature of work.

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

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the director of the tax office of Western

1. The Defendant’s disposition of imposition of capital gains tax of KRW 84,049,560 for the Plaintiff on July 8, 2008 exceeds KRW 33,596,762 of capital gains tax for the year 2007 shall be revoked.

2. Litigation costs shall be borne individually by each person;

The same shall apply to the order.

1. Details of the disposition;

A. On July 10, 2003, the Plaintiff acquired and owned ○○○○○○, ○○○○, ○○○○, 809, and transferred the farmland in this case to KimA on March 27, 2007. On June 16, 2006, the Plaintiff filed an application for reduction and exemption of capital gains tax as a substitute land for KRW 33,596,760, when filing a report on capital gains tax on the farmland in this case, on June 30, 2007, based on the fact that he acquired ○○, ○○, ○○, ○○○, ○○, and 31-14, △△△, Dong-dong, ○○, ○○, ○○○, and 1.323 square meters (hereinafter “the substitute land in this case”).

B. Accordingly, since the Plaintiff did not directly cultivate the farmland of this case, the Defendant failed to meet the requirements for reduction and exemption due to the farmland substitute land for the farmland of this case, and deemed that the farmland of this case constitutes the land for non-business use, and excluded the Plaintiff from the application for reduction and exemption on July 8, 2008, and applied the tax rate of 60% for the land for non-business use, and notified the Plaintiff of the rectification of KRW 84,049,560 for the transfer income tax for the year 207 (hereinafter

(c) The plaintiff filed an appeal on October 13, 2009 on the grounds of appeal, but it was decided by the Tax Tribunal to dismiss the appeal on December 24, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 3, 7, 8, Eul evidence 1 and 6

2. The plaintiff's assertion

When the Defendant does not prove that it is non-business land in relation to the farmland of this case and formally excluded from reduction and exemption, it is unlawful to uniformly determine the land for non-business use and impose an excessive disposition according to the tax rate of 60%.

3. Relevant statutes;

Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007)

4. Determination of Article 168-6 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21301, Feb. 4, 2009)

The issue of this case is whether the farmland of this case constitutes land for non-business use at the time of transfer, since the plaintiff withdrawn the assertion of the grounds for reduction or exemption of capital gains tax on farmland substitute land under Article 70 of the Restriction of Special Taxation Act, which became the basis of the disposition of this case.

Specifically, in full view of Article 104-3 of the Income Tax Act and Article 168-6 subparagraph 2 of the Enforcement Decree of the Income Tax Act, the determination of whether the Plaintiff used the farmland in this case for non-business purposes should be made depending on whether the Plaintiff used the farmland in this case for a period exceeding three years after subtracting three years from the ownership period of the land in this case, ② a period exceeding one year from the three years immediately before the transfer date, ③ a period exceeding twenty percent of the ownership period of the farmland in this case.

In the instant case, it is ultimately examined whether the Plaintiff re-drawed and re-ed the farmland of this case for not less than one year from March 28, 2004 to March 27, 2007 during the period of ownership of the farmland of this case (as of July 10, 2003 - March 27, 2007).

First of all, in relation to the burden of proof, the transfer income tax rate should be increased if the non-business land under Article 104-3 of the Income Tax Act is transferred. Whether certain land falls under the non-business land should be proved by the tax authority as it falls under the fact of taxation requirements. However, the Income Tax Act widely prescribes the non-business land, which serves as the reason for reduction of the non-business land, and the income tax act functions as the reason for reduction of the non-business land. In the case of farmland, the tax payer can easily prove this as the matter belonging to the taxpayer's territory, while it is difficult for the tax authority to prove that the taxpayer falls under the non-business land, but it is difficult for the taxpayer to prove that the taxpayer is "non-business land" and the tax authority adopts the method of return and payment as to the transfer income tax, considering the fact that it is reasonable for the taxpayer to select the taxation requirements and submit the supporting materials, the plaintiff who asserts it should prove it.

Comprehensively taking account of the overall purport of arguments in evidence Nos. 4, 5, 10, 13, 15, and 16 of this case, the plaintiff may recognize the fact that the plaintiff had been a rice farmer since June 15, 2005, which was written by the plaintiff in the farmland ledger as the plaintiff's self-defense (the farmland ledger is a public document that is confirmed and prepared by the government office. Considering the fact that there is lack of objective evidence to prove self-defense, it is a good evidence to prove self-defense, and unless there is no counter-proof that the plaintiff was actually not a self-defense, it can be acknowledged that the above fact was submitted in this case with other evidence about self-defense. Meanwhile, it is doubtful that the plaintiff had a different income during the above period, but it does not interfere with the above recognition, considering the size of the income amount and the relationship between the plaintiff and the plaintiff, and it does not interfere with the plaintiff's farmland as stipulated in evidence No. 7 of this case's sales contract.

Therefore, in the disposition of this case, there is an error of law by applying the transfer income tax rate on the transfer of non-business land as to the farmland of this case. Thus, the plaintiff's claim seeking partial cancellation of the disposition of this case is reasonable, and it is so decided as per Disposition.