Whether the land of this case is the land under title trust or not

Inasmuch as the Plaintiff cannot be deemed as the actual owner of the land of this case and there was no fact that he acquired the profit from the transfer of the real estate of this case, the disposition imposing the transfer income tax of this case is unlawful.

Article 14 of the Framework Act on National Taxes

Cheongju District Court 2014Guhap1194

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ㅁㅁ세무서장

National Flag

January 22, 2015

o February 5, 2015

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

CC Head of the tax office on August 1, 2013 52,649,180 won for the Plaintiff in 2009

on August 1, 2013, 2009, resident tax on the Plaintiff by Defendant OO head;

Each disposition imposing KRW 5,264,910 shall be revoked.

1. Details of the disposition;

A. On July 3, 2002, the Plaintiff: (a) on July 3, 2002, OO-Gu OO-Eup***7 square meters in seven parcels, such as 1,883 square meters (hereinafter “the Plaintiff”).

"The first land of this case" was registered for transfer of ownership on the ground of donation, and the above land was incorporated into a road project executed by the Administrator of the Multifunctional Administrative City Construction Agency.

1. The Plaintiff was admitted, and thereafter, on May 30, 201, acquired 945 square meters prior to the OOOOOO-gun (hereinafter “instant 2 land”) in KRW 60 million.

B. Under Article 70(1) of the Restriction of Special Taxation Act and Article 67(3) of the Enforcement Decree of the same Act, the Plaintiff filed an application for reduction of or exemption from capital gains tax on farmland substitute land with respect to the transfer of the instant land to the director of the tax office.

C. Since then, the Director of the GG Regional Tax Office confirmed that the Plaintiff had cultivated the instant land No. 2 acquired after transferring the instant land to another person and did not constitute the reduction or exemption of capital gains tax, and notified the Defendants thereof.

D. Accordingly, on August 1, 2013, the director of the tax office issued a notice of correction and notification of capital gains tax of KRW 52,649,180 to the Plaintiff, and the head of Defendant 00 to the Plaintiff on the same day was KRW 5,264,910 on the same day.

B. A correction and notification was made (hereinafter referred to as the "disposition of this case").

E. On October 21, 2013, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Director of the Tax Tribunal for adjudication.

However, the above claim was dismissed on December 30, 2014.

[Ground of Recognition] Unsatisfy, Gap evidence 1, 4 through 8, Eul evidence 1 to 4, Eul evidence 1,

2 Entry of evidence, the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, a spouse of the Plaintiff, and the land No. 1 of this case, have been cut down for about 35 years. The deceased and his children, without the Plaintiff’s consent, completed the registration of ownership transfer for the reason of donation in the name of the Plaintiff with respect to the land above, in order to prevent disputes arising in connection with the division of inherited property and to accomplish their will. It is reasonable to deem that the Plaintiff was succeeded to the land above by the Plaintiff. Under the premise that the Plaintiff reported the transfer income tax of the land in this case and acquired it by donation, it is reported by mistake because it was not well aware of the relevant Acts and subordinate statutes. Accordingly, the land No. 1 of this case constitutes the reduction and exemption of transfer income tax for the farmland in this case under Article 69(1) of the Restriction of Special Taxation Act and Article 66 of the Enforcement Decree of the same Act. Thus, the disposition of this case on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The principle of no taxation without law prevents taxation requirements, non-taxation requirements, or tax exemption requirements.

The interpretation of tax laws and regulations is reasonable and reasonable, unless there are special circumstances.

No expanded interpretation or analogical interpretation shall be permitted, and in particular, the provision of the requirements for reduction or exemption

In doing so, the strict interpretation of the provision that can be seen as a clearly preferential provision accords with the principle of tax equity (see, e.g., Supreme Court Decision 2008Du11372, Aug. 20, 2009). Furthermore, the burden of proving that the provision falls under the reduction or exemption of capital gains tax is the Plaintiff who is a taxpayer claiming exemption of capital gains tax.

Meanwhile, Article 69 (1) of the Restriction of Special Taxation Act provides that "where a resident prescribed by Presidential Decree residing at the seat of farmland has cultivated directly for at least eight years by means prescribed by Presidential Decree, the amount of tax equivalent to 100/100 of capital gains tax shall be reduced or exempted on the income accruing from the transfer of land prescribed by Presidential Decree." Article 66 (11) 1 of the Enforcement Decree of the same Act provides that "where an heir continues to cultivate any inherited farmland for at least one year, the period acquired and cultivated by an heir shall be deemed the period

Comprehensively taking account of the contents of the above provisions, in calculating the cultivation period of self-employed farmland exempt from capital gains tax, the transferor shall calculate only the cultivation period after the acquisition of the relevant land, except in the case of inheritance, and shall not include the cultivation period at the time of the acquisition of the land owned by another person. As long as the cause of acquisition is not inheritance, only the self-employed period after the acquisition of the transferor shall be calculated (see Supreme Court Decision 94Nu2480, Aug. 26, 1994)

2) In light of the above legal principles and regulations, the following circumstances acknowledged that the Plaintiff’s transfer registration for the land of this case was made on the ground of donation, namely, the time when the ownership transfer registration was made on the land of this case on the ground of donation, and there is no special circumstance to view otherwise the validity of the above transfer registration. Furthermore, the Plaintiff’s notarized a will to inherit the land of this case to its children at a certain rate after the Plaintiff died on the premise that the entire land of this case was owned by the Plaintiff by donation. The Plaintiff reported the transfer income tax on the land of this case 1 and reported the transfer income tax to the effect that the land of this case constitutes the land subject to self cultivation reduction or exemption under Article 69(1) of the Restriction of Special Taxation Act, and the Plaintiff’s acquisition of land of this case constitutes the land subject to self cultivation or exemption under Article 70 of the same Act, and the Plaintiff’s acquisition of land of this case by the “land of this case’s 10 years after the report of transfer income tax reduction or exemption” under Article 170 of Special Taxation Act.

Furthermore, Article 70 (1) of the Restriction of Special Taxation Act provides that the tax amount equivalent to 100/100 of capital gains tax shall be reduced or exempted with respect to income accruing from the substitute farmland which a resident prescribed by Presidential Decree residing in the seat of farmland has cultivated in such a manner as prescribed by Presidential Decree due to a necessity for cultivation, and Article 67 (3) 1 of the Enforcement Decree of the same Act provides that with respect to "farmland falling under cases prescribed by Presidential Decree", Article 67 (1) of the same Act provides that a person who resided in the former seat of farmland for not less than four years shall acquire a new farmland within one year from the date of transfer of the previous farmland (two years in cases of expropriation by consultation, expropriation, or other Acts under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects) after residing in a new seat of farmland within one year from the date of acquisition, where he/she commenced a cultivation while residing in a new seat of farmland and residing in a new seat of farmland continuously and the period calculated by adding the period of previous farmland to eight years or more after commencement.

Therefore, the instant disposition taken on the same premise is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

The decision shall be rendered as above.