Cho High 2012 Before 2318 (No. 13, 2012)

It is difficult to recognize that it was farmland or was temporary absence as at the time of the date of the sales contract.

Since there was a permit for the diversion of farmland by the transferee before the date of the transfer of land before the date of the settlement of the price, the issue of whether the land was self-owned at the time of the transfer should be determined on the basis of the date of the sale and purchase contract. In light of the aerial dust, it is difficult to view that the transferred land was actually used for the actual cultivation

2012Gudan2004 Revocation of Disposition of Imposing capital gains tax

AA

Head of Busan District Tax Office

July 12, 2013

September 6, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The disposition of imposition by the Defendant against the Plaintiff on February 8, 2012 by the OOOOO of the capital gains tax belonging to the year 2010 shall be revoked.

1. Details of the disposition;

"A. On July 28, 1998, the Plaintiff: (a) completed the registration of ownership transfer due to inheritance by a division made on July 2, 1994 with respect to the OOdong 000-2 3,648 square meters; and (b) divided the above land over two occasions, and reduced the area of the above land to 3,305 square meters in around 2004; and (b) on November 5, 2010, the Plaintiff again transferred the said land to 461-2, 791 square meters in the same area as 461-10 square meters in the same area as 461-2, 791 square meters in the same area and 461-2,514 square meters in the same area (hereinafter referred to as "the land in this case"), and on the same day BB (hereinafter referred to as "BB") corporation (hereinafter referred to as "BB") in accordance with Article 161 of the Restriction of Special Taxation Act.

"However, the Director of the Busan Regional Tax Office, by conducting a regular audit on the Seosan Tax Office, notified the Defendant that the land in this case did not meet the requirements of reduction and exemption for the reason that it was not farmland at the time of transfer, and accordingly, the Defendant imposed an OOO (including additional tax) of the transfer income tax for the year 2010 on the Plaintiff on February 8, 2012 (hereinafter referred to as the "disposition in this case")." [Grounds for Recognition], “The fact that there is no dispute over the disposition in this case is 2, 3, 4, 5, and 11 evidence, and 11 evidence, and the purport of the entire pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

"1) On January 8, 2008, the plaintiff entered into a sales contract for the land of this case withCC (hereinafter referred to as "PCC") and entered into a special agreement with the plaintiff to not establish a farmer on the land of this case after the sales contract. After January 8, 2008 according to the above special agreement, the plaintiff was transferred the land of this case to (B)B according to the service contract between (ju),CC and (ju)BB. In conclusion, the issue of whether the farmland was farmland at the time of transfer should be determined as of January 8, 2008, which entered into a sales contract with the plaintiff, and (2) since it was determined as of November 5, 2010, which was the date of liquidation of the land of this case, the plaintiff did not move the land of this case into the farmland of this case into the farmland of this case, and (3) since it did not move the land of this case into the farmland of this case into the farmland of this case for 20 years after D 200 and 20 years after D cultivation.

3) Ultimately, the instant disposition was unlawful on the premise that the instant land was farmland or temporary closure at the time of transfer, and the Plaintiff did not meet the requirements under Article 69(1) of the Restriction of Special Taxation Act, even though the said provision was applied, so long as the Plaintiff did not own the instant land for at least eight years.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On January 8, 2008, the Plaintiff entered into a sales contract with the (PCC on January 8, 2008, to deliver documents necessary for the transfer of ownership to the (PP)CC or the person designated by the (PCC), while receiving the full payment of the purchase price, and at the same time receiving the payment of the purchase price, the Plaintiff entered into the sales contract (hereinafter referred to as the “instant sales contract”).

"2) (State)CC has concluded a contract with the owner of the land and paid the down payment on the land of 463 OO-dong No. 463 OO, 15,500 square meters for the purpose of building EE stores at the time of the service contract (hereinafter referred to as the "the service contract in this case"). (3) The main contents of the service contract in this case were (a) the main contents of the contract in this case were (b) the ownership transfer registration in the name of BB or the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the land in this case, and (b) the existing service contract was concluded with BB on October 28, 201 with the owner of the land and (c) the existing service contract was concluded by the owner of the land and (c) the existing service contract was concluded by the owner and (B) the transfer of the right to claim the transfer of the right.

4) After the instant service contract, the Plaintiff entered into a sales contract with B on November 5, 2010 with respect to the instant land with B on the purchase price, and the Plaintiff received the full payment on the same day, and completed the registration of ownership transfer (461-10 land) and the provisional registration of the right to claim ownership transfer (461-2 land).

“5) On the other hand, (PCC) on June 21, 2010, obtained a farmland diversion permit with respect to the land of this case including the instant land on June 21, 2010, (i) (applicable for recognition), (ii) evidence A 1 and evidence 2, evidence A 3 1, and evidence A 8 and evidence A 10, and the purport of the entire pleadings.

D. Determination

1) The principle of strict interpretation derived from the principle of no taxation without law is not only applicable to cases meeting the requirements for taxation, but also applicable to cases meeting the requirements for non-taxation and tax reduction and exemption, and extended interpretation or analogical interpretation of the requirements for non-taxation or tax exemption and exemption as favorable to taxpayers without any justifiable reason leads to a result contrary to the principle of no taxation, which is the basic ideology of the tax law, and thus, it shall not be allowed (see, e.g., Supreme Court Decision 2005Da19163, May 24, 2006).

In addition, land which is not actually cultivated as of the date of transfer cannot be considered as farmland as of the date of transfer, regardless of whether it is by the owner of land or by another person, and is not temporarily in a state of temporary border, and it does not constitute land subject to non-taxation of capital gains tax (see, e.g., Supreme Court Decisions 2004Du5003, Jun. 23, 2005; 91Nu7422, Nov. 12, 1991).

2) As to the base point for determining whether farmland is farmland

Article 66 (5) of the Enforcement Decree of the Restriction of Special Taxation Act stipulates that whether the farmland is subject to reduction or exemption shall be based on the farmland as of the date of transfer under Article 162 of the Enforcement Decree of the Income Tax Act (Article 162 of the Enforcement Decree of the same Act stipulates the time of transfer as the date of settlement of the price) and that when the purchaser changes the form and quality, and starts construction in accordance with the terms

In light of the fact that (a)CC purchased the instant land from the Plaintiff, as known by the above facts, and (b) it was for the establishment of the EE store in the state BB, and (c)CC concluded the instant service contract between the State CC and (b)BB, and (b)CC was in charge of both the purchase of the site for the instant land and the authorization process, it is reasonable to see that (a)BB took over the purchaser status of the instant land from the State CC as a result of the sales contract between the Plaintiff and the CC on the instant land and the Plaintiff, and as seen earlier, it should be determined on the basis of January 8, 2008, which is the date of the instant sales contract.

3) Whether farmland is farmland as at the date of the sales contract

The evidence submitted by the Plaintiff alone is insufficient to regard the land of this case as farmland actually used for the actual cultivation at the time of January 8, 2008, which is the date of the instant sales contract, and there is no other evidence to acknowledge it.

Rather, in light of the following circumstances acknowledged by adding the overall purport of the pleadings to each image of Eul evidence 2-1 to five, namely, the land of this case is classified as miscellaneous and miscellaneously away from other neighboring land that is occupied by dry River as the state of being left unattended on September 2006, and there seems to be no particular change in the aerial village around 2008, and the plaintiff himself recognized that the children who had farming houses were living together from around 2007, were unable to properly manage the land of this case on the wind that they escape in criminal cases, and it is difficult to view that the land of this case was actually used for cultivation at the time of the sales contract of this case, or that the situation of its use was not only passed through a temporary stop condition, and thus, the disposition of this case was legitimate by the defendant on the premise that this case is not a self-owned farmland subject to reduction and exemption of capital gains tax under Article 69 (1) of the Restriction of Special Taxation Act, and that it does not constitute a legitimate disposition of this case.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.