Cho High Court Decision 2012Nu0242 (O. 21, 2012)

There is no evidence to prove that substitute land is farmland and that it has been cultivated directly.

In light of the fact that a corporation is in office as a director, operates real estate brokerage business, and was transferred immediately after the acquisition of substitute land after the reduction or exemption period is met, that the former owner seems to have never cultivated the substitute land, and that there is no objective data on the cultivation and disposal of crops, and that there is no objective data on the cultivation and disposal of crops, etc., it cannot be recognized that the substitute land was directly cultivated.

2012Guhap1837 Revocation of Disposition of Imposing capital gains tax

AAA

Kim Jong-soo

January 31, 2013

February 21, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 000 for the year 2006, and the imposition of penalty tax of KRW 000 as of January 10, 201, all of the Defendant’s imposition of capital gains tax of KRW 200 for the year 2006, shall be revoked.

1. Details of the disposition;

가. 원고는 2000. 1. 14. 김해시 진례면 OO리 00 답 496㎡， 같은 리 000 답 658㎡， 같은 리 0000 답 899㎡(이하 '종전 토지'라고 한다)를 취득한 후 2006. 10. 13. 우DD 에게 양도하고， 2007. 1. 2. 하EE으로부터 김해시 진례면 FF리 000 답 2，803㎡(이 하 '이 사건 대토토지'라고 한다)를 취득하였다.

B. On January 29, 2007, the Plaintiff filed an application for reduction or exemption of capital gains tax on the substitute land for farmland pursuant to Article 70(1) of the former Restriction of Special Taxation Act (amended by Act No. 10406, Dec. 27, 2010; hereinafter the same) with the Defendant on January 29, 2007, and transferred the substitute land of this case on January 19, 2010.

C. On December 1, 2010, the Defendant, as a result of the on-site verification, determined and notified the Plaintiff of KRW 000 and KRW 000 of the capital gains tax for the farmland substitute land and KRW 000 of the additional tax for the year 2006, and revoked the above additional tax ex officio, and imposed KRW 000 of the additional tax on January 10, 2013 (hereinafter the above imposition disposition of capital gains tax and imposition of additional tax as of January 10, 2013).

D. On December 19, 201, the Plaintiff dissatisfied with the instant disposition, caused a request for judgment to the Tax Tribunal, and the Tax Tribunal dismissed the said request on March 21, 2012.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, and 3 (including household numbers), and the purport of all pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, not only directly cultivated the previous land but also cultivated the substitute land of this case for not less than three years, and thus, income from the transfer of the previous land constitutes the reduction or exemption of capital gains tax under Article 70(1) of the former Restriction of Special Taxation Act. Nevertheless, the Defendant’s disposition that did not recognize the reduction or exemption of capital gains tax on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) According to Article 70(1) of the former Restriction of Special Taxation Act and Article 67 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 2037, Feb. 18, 2010; hereinafter the same shall apply), if a person who resides in an area within a Si, Gun or Gu where farmland is located or in an area adjacent thereto for three or more years, directly cultivates, the amount of tax equivalent to 10/100 of the transfer income tax on the land which is subject to agricultural income tax for the necessity of cultivation shall be reduced or exempted, and if a person acquires farmland for three or more years from the date of transfer to another person and acquires new farmland for three or more years after residing in a new farmland for three or more years, and if such new farmland for three or more years, it means that the area of farmland newly acquired should be 1/2 or more of the area of farmland for one-year period from the date of transfer to which the farmland is transferred, and that it means that the previous farmland is subject to reduction or exemption or exemption for one-year.

(2) The plaintiff's previous 0G 20, Eul evidence No. 20, Eul evidence No. 1 to No. 6, and Eul evidence No. 8, each of the following circumstances acknowledged by adding the overall arguments to the entry or video No. 9, and ① the plaintiff's previous arable land that was close and well arranged at his own place of residence, and there are no special circumstances to acquire the substitute land at a relatively high level of accessibility. ② It is expected that the urban management planning for the construction of golf courses is established at the 20G 10, and the above 10G 206 .3G 20, for which the plaintiff's new arable land had no evidence of 0.3G 20, for each of the above 10G 206, for which the plaintiff's new arable land had no evidence of 10,000, for which the 2G 5G 3G 30,000 had no evidence of this case's new arable land.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed for reasons.