Suwon District Court-2014-Gudan-3253

The plaintiff's assertion is without merit since it is not proved for 8 years' self-defense.

Unless there are special circumstances, the taxpayer has the burden of proof as to the fact that the plaintiff is a person residing and directly cultivated in the location of the land, and there is no evidence to prove that the plaintiff directly cultivated the land of this case.

Article 95 of Income Tax

Seoul High Court 2015Nu42932 Revocation of Disposition of Imposing capital gains tax

L**

Head of Si Tax Office

Suwon District Court Decision 2014Gudan3253 Decided April 10, 2015

October 21, 2015

November 11, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The transfer income tax reverted to the Plaintiff on December 2, 2013, which the Defendant rendered to the Plaintiff on December 2, 2013

102,078,245 won (including additional taxes) shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of this court's ruling is, except for the following part among the judgment of the first instance court:

Therefore, in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, it is identical to the reasoning for the judgment

this chapter.

○○ 2 side 5 side 5 side ** "right**, etc."

○ 3rd to 16th to 4th 10th - as follows.

(1) First, we examine whether the instant land constitutes land for non-business use. The former income

According to Articles 95(2) and 104-3(1)1 (a) of the Tax-Related Act (amended by Act No. 11611, Jan. 1, 2013); and Articles 168-6 and 168-8 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 24356, Feb. 15, 2013); non-business land is excluded from the subject of special long-term holding deduction; if the period of ownership exceeds five years, the period exceeding two years in the preceding five years in the transfer date; if the period exceeds one year in the preceding three years in the transfer date; and if the owner of farmland does not reside in the place of farmland or own farmland, the period exceeding one year in the preceding three years in the possession date; and in this case, the term “non-business land for which the owner is registered as a resident of the neighboring area, and a person who actually resides in the area adjacent thereto, is engaged in cultivating farmland or growing farmland with his/her own ability to cultivate farmland under Article 25 of the Farmland Act.

However, in light of the Plaintiff’s work experience at the Korean Racing Association, and the work experience of shop operation, etc., it is difficult to deem that the Plaintiff used the instant land for a certain period as prescribed by the above statutes, and there is no other evidence to acknowledge this. Furthermore, it is evident that the Plaintiff did not meet the above requirements for residence and self-competitiveness after departure from the Republic of Korea on May 4, 2007. Since the said period exceeds 20% of the ownership period of the instant land’s share (from June 26, 1989 to August 1, 2012), it constitutes non-business land under the above provision.

The plaintiff's assertion on this part is without merit.

2. Conclusion

The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.