The land in this case is deemed to be the land for business and is subject to special long-term holding deduction.

Since the land of this case is used for the purpose of storage, etc. in custody of agricultural waste vinyl, etc. from 2007 to 2013, which is two months before the transfer date, and is deemed land for business pursuant to Article 168-11 (1) 7 of the Enforcement Decree of the Income Tax Act, it shall be subject to the special long-term holding deduction. Therefore, the disposition

Scope of other land used for the business under Article 168-11 of the Enforcement Decree of the Income Tax Act

2017Guhap5243 Revocation of Disposition of Imposing capital gains tax

AA

○ Head of tax office

May 12, 2017

June 2, 2017

1. The Defendant’s portion of the capital gains tax belonging to the year 2014 against the Plaintiff on June 2, 2016 ○○○○○○○○.

The administrative disposition shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On February 26, 2014, the Plaintiff: (a) on February 26, 2014, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ (hereinafter “instant soil”).

The land is sold at KRW 00 billion, and on May 30, 2014, on the instant land, the land is sold at KRW 00 billion.

Preliminary return of capital gains tax was made by applying reduction and exemption (Article 69 of the Restriction of Special Taxation Act).

B. On June 2, 2016, on the premise that the instant land constitutes non-business land which is not farmland as of the date of transfer, the Defendant made a disposition imposing 00 won of capital gains tax for the Plaintiff for the year 2014 (hereinafter “instant disposition”).

C. The Plaintiff, who is dissatisfied with the instant disposition, filed an objection on June 13, 2016, and filed on October 12, 2016.

Although the Tax Tribunal requested a trial, it was dismissed on December 8, 2016.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, 19, 20 (including paper numbers; hereinafter the same shall apply)

each entry, the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Claim 1

Although the Plaintiff received a notice of the Defendant’s results of tax investigation on April 21, 2016 and filed a request for pre-assessment review on May 2, 2016, the Defendant rendered the instant disposition before the decision on pre-assessment review was rendered, and thus, the instant disposition is null and void due to procedural significant and apparent defects.

2) Claim 2

The Plaintiff cultivated the instant land directly for at least eight years, and used it for the purpose of the farming shed that keeps agricultural waste vinyl, etc. in custody by leasing it to another person from 2007 to 2013, and transferred the instant land after re-aled it as dry field. As of the date of transfer, the instant land falls under the relevant low-priced difference in farmland prescribed in Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 14390, Dec. 20, 2016; hereinafter the same

Ro. The transfer income tax on the land of this case must be exempted.

3) Claims 3

The Plaintiff inherited the instant land, which belongs to a planned control area, from his father who has cultivated directly for at least eight years, and the instant land is subject to special deduction for long-term holding, as it is deemed land for business pursuant to Article 104-2 (1) 4 and (2) of the former Income Tax Act (Amended by Act No. 13558, Dec. 15, 2015; hereinafter the same shall apply) and Article 168-14 (3) 1-2 of the Enforcement Decree of the same Act.

4) Claims ④

The instant land is used for the purpose of storage, etc. in custody of agricultural waste vinyl, etc. from 2007 to the end of 2013, which is two months before the transfer date, and is deemed land for business pursuant to Article 168-11 (1) 7 of the Enforcement Decree of the Income Tax Act, and thus is subject to special deduction

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) The Plaintiff’s father owned and cultivated the instant land directly from 1979, and the Plaintiff succeeded to the instant land from his father on July 1, 1992 and cultivated it directly from around 2007.

2) From around 2007 to the end of 2013, the instant land was not cultivated, and the waste vinyl, etc. was filled up on that ground.

3) While the Plaintiff owned the instant land, there was a water network and pents installed in order to distinguish the boundary between the surrounding land and other surrounding land. However, there was no facility for storing agricultural waste vinyl.

4) On or around April 9, 2014, immediately after the Plaintiff sold the instant land, the instant land is in a state where goods are placed with miscellaneous grass in the surrounding area.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 8, 12, 14, 21, Eul evidence Nos. 2 and 3, defense

The purport of the whole

D. Determination

1) As to the assertion ①

Only the evidence evidence Nos. 17 and 18 is insufficient to acknowledge the fact that the plaintiff requested a pre-assessment review prior to the disposition of this case, and there is no other evidence to acknowledge it.

Therefore, this part of the plaintiff's assertion is without merit.

2) As to the assertion 2

Under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring any special circumstance, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fair taxation to strictly interpret that the provision is clearly considered as a preferential provision among the requirements for reduction and exemption (see, e.g., Supreme Court Decision 2008Du11372, Aug. 20, 2009).

In light of the above legal principles, according to Article 69(1) of the Restriction of Special Taxation Act, Article 66(4) of the Enforcement Decree of the same Act, and Article 27(1) of the Enforcement Rule of the same Act, self-arable farmland subject to capital gains tax reduction or exemption under the same Act is actually used for farming as of the date of transfer

According to the above facts, the land of this case was used for the purpose of stockpiling a waste vinyl for agricultural use from 2007 to the date of transfer, and there was no fact that it was used or reclaimed for farming until the date of transfer.

Therefore, it cannot be considered as a self-farmland.

In addition, Article 27 (1) of the Enforcement Rule of the Restriction of Special Taxation Act ("Enforcement Rule of the Restriction of Special Taxation Act") is included in the concept of farmland in the farming shed, compost, pumping station, branch office, concentration, waterway, etc. which are directly required for farmland management, but the interpretation that the prior meaning of the farming shed is ‘a house simple' in the dry field near the dry field so that it can be convenient for farming. â‘ The prior meaning of the farming shed is ‘a house'; â‘ the farming shed is defined as â‘a facility installed for temporary rest in agricultural materials and farming machinery, harvested simple treatment of harvested agricultural products or farming works directly necessary for farming work; â……………§ 3) the compost, pumping station, branch office, concentration, waterway included in the concept of farmland is also a facility separate from the farmland itself. In light of the above, it is not permissible to interpret that it is included in ‘a farmer' in the case of storing a closed vinyl, etc. on the site of the land in this case without installing separate facilities, such as the land in this case.

As to this, the Plaintiff asserts to the effect that the land of this case was not used for farming at the time of the transfer date, even if it was not used for farming, it constitutes farmland. However, as seen earlier, since the land of this case was used not for farmland but for the purpose of keeping waste vinyl, etc. for farming for more than six years from 2007 to 6 years, it cannot be deemed that there was a temporary suspension status as of the transfer date. Accordingly, the Plaintiff’s assertion on this part is without merit.

3) As to the assertion No. 3

The purport of Article 104-2 (1) 4 and (2) of the former Income Tax Act and Article 168-14 (3) 1-2 of the Enforcement Decree of the same Act that directly cultivated while residing in the land location prescribed by Ordinance of the Ministry of Strategy and Finance for not less than eight years, and the land inherited from the relevant lineal ascendant is unreasonable to include the above farmland in the non-business land uniformly in the case where a taxpayer inevitably ceases to meet the requirements for self-defense due to the death of a lineal ascendant who directly cultivated the farmland as a property for business. Thus, the above provision is a provision premised on the fact that the above farmland falls under farmland as of the transfer date as of the transfer date. Thus, the above provision does not apply to the case where the plaintiff was made into the land other than farmland as of the transfer date after the inheritance of the land in this case and using the waste vinyl, etc. for the purpose of keeping

Therefore, the plaintiff's assertion on this part is without merit.

4) As to the assertion No. 4

Generally, the burden of proof on the facts of taxation requirement in a lawsuit seeking revocation of taxation is imposed on the tax authority, and the tax authority bears the burden of proof on the defendant, who is the tax authority, as to the requirements for the non-business land over which the transfer income tax is excessive (see Supreme Court Decision 2010Du8423, Sept. 30, 2010). Thus, the defendant must prove that the land in this case is not land for non-business because it falls under storage, etc. under Article 168-11 (1) 7 of the Enforcement Decree of the Income Tax Act

However, while the defendant did not submit any evidence to prove that the land of this case is not a storage, etc., the following circumstances, namely, ① the plaintiff leased the land of this case to the ○○○ tenant (at least 40 persons organized in 2007 to the end of 2013) from 2007 to the end of 2013, ② the ○○○○ tenant Group cultivated the land by using a plastic house near the land of this case while keeping the waste vinyl, fertilizer, agricultural machinery, etc. on the land of this case ③ the ○○○○○ tenant Group paid rent to the plaintiff with earnings from selling the above waste vinyl, ④ the meaning of the “the place where the land of this case was stored for 20 years from the end of November 2010 to the end of July 7, 201,” which appears to be unlawful in light of the meaning and purpose of the “the place where the land of this case was stored and managed for 20 years prior to the use of the land of this case.”

As to this, the Defendant asserts that the instant disposition is legitimate, since the Plaintiff did not apply for the special deduction for long-term holding with respect to the instant land by filing a preliminary return for transfer income tax, and did not consider the special deduction for long-term holding separately while rendering the instant disposition with the Defendant. However, the transfer income tax falls under the taxation system, and thus, the transfer income tax is not immediately determined by the transfer margin or the tax base return, but is not determined by the tax base or the tax base return, but by

By notifying the tax claim specifically (see, e.g., Supreme Court Decision 82Nu383, Mar. 27, 1984); and there is no provision that sets the requirements for a taxpayer’s application with respect to special deduction for long-term holding. Thus, the defendant should impose capital gains tax by applying the special deduction for long-term holding, regardless of whether the plaintiff’s application is made, if the land of this case is the requirement for special deduction for long-term holding. Therefore

3. Conclusion

Thus, the plaintiff's claim of this case is reasonable, and it is so ordered as per Disposition.

shall be ruled.