District Court-2016-Gu Group-5981 ( October 25, 2017)

Examination-transfer-2016-0038 (20 June 2016)

It is necessary to apply the special long-term holding deduction to the fact of the lineal ascendant as the land which is unsatisfed by the lineal ascendant.

Since the Plaintiff did not directly do not do so for 8 years or longer, it is not subject to capital gains tax reduction or exemption, but it is necessary to apply the special long-term holding deduction to the fact that the Plaintiff was a lineal ascendant.

Article 69(1) of the Restriction of Special Taxation Act

2017Nu80914 Revocation of Disposition of Imposing capital gains tax

LAA

B The Director of the Tax Office

Suwon District Court Decision 2016Gudan5981 Decided October 25, 2017

April 13, 2018

June 22, 2018

1. The part of the judgment of the first instance against the plaintiff falling under the subsequent part of the order of revocation shall be revoked.

Section 82,720,510 of the capital gains tax for the year 2013 owed to the Plaintiff on December 1, 2015

The part exceeding 52,69,803 won of the excessive disposition shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 82,720,510 against the plaintiff on December 1, 2015 by the defendant shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is that the part of paragraph (a) of subparagraph 1 among the reasons for the judgment of the court of first instance is changed as follows, that "Evidence 1, 2, 10, 13, 16, and 17 of subparagraph 2 of the judgment of the court of first instance is changed as "Evidence 1, 2, 8, 10, 16, and 17 of the judgment of the court of first instance", and "each of the farmland of this case" of the 21st judgment is changed as "the farmland of this case", "the land of this case" of the 4th parallel 3th to 6th parallel 4th parallel 20th parallel, "No. 4 of the 5th parallel 8th parallel 8th parallel 8", "No. 12th parallel 13, 14th parallel 12th parallel 12", and "the plaintiff has been engaged in the culture of the farmland of this case other than the farmland of this case".

In addition, in light of the structure, language, purport, legislative purpose, etc. of the aforementioned relevant provisions, in determining whether the Plaintiff cultivated or cultivated more than half of farming work by using his own labor, it is difficult to deem that the hours of farming work by agricultural machinery should be excluded as alleged by the Plaintiff, and the “Presidential Decree No. 24534, May 10, 2013” as “Presidential Decree No. 26070, Feb. 3, 2015,” and the “Presidential Decree No. 24534, May 10, 2015,” respectively, shall be changed to “Presidential Decree No. 26070, Feb. 3, 2015,” and the same shall apply to the reasoning of the judgment of the first instance, and thus, shall be cited as it is in accordance with Article 8(2) of the Administrative Litigation Act

2. The changed part

A. On July 22, 1994, the Plaintiff, the father of the Plaintiff, donated 1501 square meters per annum prior to AAA43-1, prior to 143-2, prior to 1914 square meters, from the Plaintiff. The land category was changed and divided, 143-1 square meters per 143-1, prior to 143-2, and 1497 square meters per 143-2, prior to 143-1, prior to 1497 square meters (hereinafter referred to as “the above land”), and thereafter, the Plaintiff transferred the above farmland to the Plaintiff on June 7, 200, after completing the registration of ownership transfer from the Plaintiff on June 3, 200, 141-3, and 143-14, prior to 201, 300 square meters per 143-14,631,641-13,47.

3. Additional matters to be determined;

A. The plaintiff's assertion

The plaintiff asserts to the effect that even though the plaintiff had cultivated the farmland in this case directly for not less than 8 years, since the plaintiff's father, the largestCC, directly cultivated the farmland in this case for not less than 8 years, the amount of special deduction for long-term possession should be deducted from the gains on transfer of the farmland in this case.

B. Determination

Article 95 of the former Income Tax Act (amended by Act No. 12169, Jan. 1, 2014) provides that capital gains shall be the amount calculated by subtracting necessary expenses under Article 97 from the total amount of capital gains under Article 94 (hereinafter referred to as “transfer value”); and that special deduction amount for long-term holding under paragraph (1) shall be the amount obtained by deducting the special deduction amount for long-term holding from such amount (hereinafter referred to as “transfer margin”); and that under Article 94 (1), "special deduction amount for long-term holding" means the amount calculated by multiplying the assets (excluding assets transferred without registration under Article 104 (3) and land for non-business under Article 104-3) under Article 94 (1) 1 by the deduction rate by holding period for not less than three years (paragraph (2); and that under Article 97 (2), the period of holding assets shall be the date of acquisition of such assets; in cases of Article 97 (4), the spouse or lineal ascendant or descendant who received donations from such land shall be counted from the date of such land (paragraph).

In light of the following circumstances, Gap evidence Nos. 11, 12, 13, 15, Eul evidence Nos. 16-1, 2, 3, 17, and Eul evidence Nos. 16-1, Eul evidence Nos. 3, and Eul evidence Nos. 16-1, which are acknowledged as comprehensive purport of the whole pleadings: ① The plaintiff's father, for not less than 8 years, had resided in the above 143-1 farmland, etc., for not less than 143-1, and ② the plaintiff directly cultivated the above 143-1 among the farmland in this case; ② the plaintiff's father, the plaintiff's father, donated the above 143-1 farmland in this case to April 15, 2013; ③ the plaintiff's above part of the farmland in this case, other than the above 143-1, the plaintiff's father, the father of the plaintiff's father, who completed the registration of ownership transfer from the above 3-1, the above farmland in this case's farmland possession.

C. Sub-committee

Therefore, the transfer income tax for the year 2013, calculated by deducting the special deduction amounting to 69,737,079 won from the gains from the transfer of the farmland of this case, is KRW 52,69,803 as shown in the separate calculation sheet. Therefore, the portion exceeding KRW 52,69,803 of the disposition of this case shall be revoked in an unlawful manner.

4. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and b

s) A claim for money shall be dismissed for lack of good cause. Since the judgment of the court of first instance is unfair with a different conclusion, part of the plaintiff's appeal shall be accepted, and the part against the plaintiff corresponding to the order for cancellation above shall be revoked, and the part exceeding 52,69,803 won of the disposition of this case shall be revoked, and the remaining appeal of the plaintiff shall be dismissed for lack of good cause. It