Daejeon High Court 201Nu2321, 2012

early 2010 to 0529 ( November 22, 2010)

The disposition of capital gains tax is legitimate because it does not meet the requirements for residence and cultivation of substitute farmland.

The criteria for non-taxation of capital gains tax were not satisfied because he had resided in the location of substitute farmland for not less than 3 years and failed to cultivate substitute farmland directly. Even if there were errors in part of the fact recognized at the time of disposition, if the fact that he did not meet the requirements for non-taxation of capital gains tax is recognized, the identity

2012du15852 Revocation of disposition of imposing capital gains tax

Nam

Decree of the National Tax Service

Daejeon High Court Decision 2011Nu2321 Decided June 21, 2012

November 15, 2012

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the court below is just in rejecting the Plaintiff’s assertion that the evidence consistent with the Plaintiff’s assertion was difficult to believe or insufficient to recognize its assertion, and that the Plaintiff had resided in the location of the pertinent XX land for more than three years and cultivated the instant XX land. In so doing, contrary to the allegations in the grounds of appeal, there were no errors of law affecting the conclusion of the judgment by either arbitrary fact-finding

2. Regarding ground of appeal No. 2

Even if there were errors or errors in part of the facts recognized at the time of the initial disposition by the tax authorities, if the facts found thereafter are not different from the original facts of taxation, the identity of the disposition is maintained (see, e.g., Supreme Court Decisions 93Nu14059, Dec. 21, 1993; 96Nu3272, Feb. 11, 1997).

According to the reasoning of the judgment below, the court below found the Defendant’s disposition of this case on the ground that the Plaintiff did not directly cultivate the instant XX land while residing in the location of the instant XX land for not less than three years, and did not meet the requirements for non-taxation on capital gains tax regarding the transfer of the instant OE land, and determined that the disposition of this case was lawful on the ground that

In light of the aforementioned legal principles and records, even if there were errors based on the Plaintiff’s investigation findings on other land as to part of the facts acknowledged at the time of the instant disposition, if it was recognized that the Plaintiff failed to meet the non-taxation requirements for capital gains tax in connection with the transfer of the OE land thereafter, this constitutes a case where the basic fact of taxation varies within the scope of the same fact as the original reason of taxation, and thus, the identity of the disposition is maintained. Therefore, the instant disposition cannot be deemed unlawful solely on the above error. In addition, even if the above error was found, the lower court did not change the grounds of disposition in order to determine the legality of the instant disposition. Thus, the lower court did not err in

Therefore, this part of the ground of appeal to the effect that the judgment of the court below allowed the ex post facto change of the reasons for disposition and affected the conclusion of the judgment is not acceptable.

3. As to the third ground for appeal

According to the reasoning of the judgment of the court of first instance as cited by the court below, the court below determined that each provision of Article 153 (5) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 19254 of Dec. 31, 2005) and Article 67 (4) of the Enforcement Decree of the Restriction of Special Taxation Act cannot be applied to the case of this case where the purchase by consultation or expropriation of substitute farmland by consultation or expropriation before three years elapse from the acquisition of substitute farmland by the self-employed farmer, thereby preventing the non-taxation of capital gains tax from being excluded due to a cause not attributable to the self-employed farmer. Thus, in order to prevent the non-taxation of capital gains tax from being purchased by consultation or expropriation, the above provision shall not be applied.

In light of the relevant statutory provisions and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there is no illegality that affected the conclusion of the judgment by erroneous interpretation of the Enforcement Decree

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.