Review Transfer 2009-0121 (Law No. 28, 2009)

Whether farmland constitutes land for non-business use

Since it is apparent that the farmland ownership period was residing in a foreign country and was not re-established, it constitutes land for non-business use.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 108,241,260 for the Plaintiff on September 8, 2008 shall be revoked.

1. Details of the disposition;

A. On April 29, 2003, the Plaintiff acquired 558 m234 m2 (hereinafter “the farmland in this case”) from the Hasung-si, Gyeonggi-si, Kimpo-si, and transferred it to MaB on September 20, 207.

B. Upon filing a preliminary return of capital gains tax on November 27, 2007, the Plaintiff applied for reduction of 88,024,000 won for the calculated tax amount due to farmland substitute land under Article 70 of the Restriction of Special Taxation Act.

C. On May 21, 2008, the Defendant notified the Plaintiff of the taxation that the Plaintiff will not apply for reduction or exemption and would be taxed as non-business land. Accordingly, on May 31, 2008, the Plaintiff revoked the initial application for reduction or exemption and filed a final return on capital gains tax on the tax amount to be paid KRW 88,024,000 by applying the general tax rate.

D. On September 8, 2008, the Defendant deemed that the Plaintiff failed to meet the requirements for re- village and self-sufficiency with respect to the farmland in this case and notified the Plaintiff of KRW 108,241,260 of the transfer income tax for the year 2007 by applying the tax rate of 60% to the land for non-business (hereinafter the instant disposition).

[Reasons for Recognition] Facts without dispute Gap evidence No. 1 and Eul evidence No. 1

2. The plaintiff's master;

The land for non-business use under Article 104-3 (1) of the Income Tax Act must be proved by the defendant, and the plaintiff has been residing in Gangseo-gu Seoul Metropolitan Government and Kimpo-si for a period of time excluding the period from November 1, 1994 to June 23, 2006 when all members of the household left the training course with the United Kingdom from November 1, 2094. The plaintiff is deemed to be a member of the agricultural cooperative and to have not been able to do so, and thus the disposition of this case is unlawful.

3. Related Acts and subordinate statutes.

Attached Form is as shown in the attached Form.

4. Determination

The issue of this case is whether the farmland of this case constitutes non-business land.

In case of the transfer of non-business land under Article 104-3 of the Income Tax Act, the rate of capital gains tax shall be increased. Whether land falls under the non-business land shall be generally proved by the tax authority because it falls under the taxation requirements. However, since the income tax law widely provides land for non-business, the tax law functions as the grounds for reduction or exemption of the non-business land. In the case of farmland, the tax payer can easily prove this as the matters belonging to the taxpayer's territory, while it is difficult for the tax authority to prove that the "non-business land" belongs to the taxpayer's territory, while it is difficult for the taxpayer to prove the fact, and it is reasonable for the taxpayer to report and pay the income tax in consideration of the fact that it is reasonable for the taxpayer to select the taxation requirements and submit the verification data.

The plaintiff asserts that he/she had resided in Kimpo-si for about four years and five months (1,631 days) of his/her stay abroad and less two years and seven months (940 days from June 28, 2003 to January 23, 2006) (691) during the period of November, 200, and that he/she re-owned his/her farmland for at least three years and seven months (691 days). Considering the whole purport of his/her pleading, the plaintiff can be re-owned in accordance with the evidence Nos. 3, 4, 5, and 7, and there is no other evidence to deny this, but for the period exceeding four years and five months (1,631 days) of his/her possession period, i.e., the period exceeding one year and five months after subtracting three years from the date of transfer, and there is no violation of law regarding the transfer of farmland for at least three years immediately preceding three years (20 days from September 21, 2004 to 206).

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