Seoul Administrative Court-2015-Gu Group-63411 (Law No. 13, 2016)

Examination-transfer-2015-091 (Law No. 23, 2015.09)

The burden of proof concerning the residing requirements and direct cultivation requirements in farmland;

Where a resident of farmland transfers land directly cultivated for not less than eight years under Article 69 (1) of the Restriction of Special Taxation Act, a person who intends to be subject to paragraph (3) of the same Article shall apply for reduction and exemption. Therefore, the taxpayer has the burden of proving the requirements for farmland residence and the direct cultivation requirements for not less than eight years prescribed in paragraph (1) of the same Article

Article 69 of the Restriction of Special Taxation Act

2016Nu4814 Revocation of Disposition of Imposing capital gains tax

AA

BB Director of the Tax Office

Seoul Administrative Court Decision 2015Gudan63411 decided May 13, 2016

September 21, 2016

October 12, 2016

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 defendant's imposition of capital gains tax of KRW 000,000,000 on December 1, 2014 against the net CCC shall be revoked.

1. Details of the disposition;

A. The Plaintiff’s attached CCC (hereinafter “CCC”) sold to Nonparty GGG on September 10, 2013, and completed the registration of ownership transfer on November 5, 2013, upon the application of subrogation under the Rural Community Modernization Promotion Act, sold the registration of ownership transfer under the name of the deceased on January 20, 1971, to the Defendant on January 3, 201, when the registration of ownership transfer was completed on January 20, 1976 as of December 9, 1976.

B. In the report, the Deceased filed an application for reduction or exemption of capital gains tax under Article 69(3) of the former Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015; hereinafter the same) on the ground that he/she had resided directly in the location of the farmland of this case for at least eight years in the report

C. As to this, the Defendant conducted an investigation of capital gains tax from July 9, 2014 to September 25, 2014, and subsequently denied the deceased’s application for reduction or exemption on the ground that the deceased failed to meet the requirements for residence and self-development for at least eight years (hereinafter collectively referred to as “reindation and cultivation”). On December 1, 2014, the Defendant issued the instant disposition imposing capital gains tax of KRW 218,060,000 on the deceased.

[Ground for Recognition: Unsatisfy Facts, Gap evidence 1 to 3, Eul evidence 1 and 2, all pleadings

[Purpose]

2. The legality of the instant disposition

A. Summary of the plaintiff's assertion

The plaintiff asserted that the farmland of this case was unlawful even if HH acquired the farmland of this case by inheritance on January 14, 1954, and died on March 3, 1965, after he married with DD and was in his wife's work at his own time or by inheritance, without confirming specific facts in the course of performing the farmland rearrangement project. The deceased resided in the location of 13 years and 7 months from that time until he transferred to Seoul on April 13, 1979, and this was the relative relatives of the deceased residing in neighboring areas, his relative guarantee letter, and the plaintiff's living record of the deceased's living among the deceased's occupation stated, the deceased's disposal of this case was unlawful, regardless of its denial of the deceased's living record.

B. Determination

1) The purport of Article 69(1) of the former Restriction of Special Taxation Act stipulating that the transfer income tax shall be reduced or exempted in cases where a resident residing in a farmland area directly cultivated land for not less than eight years as part of a land farming policy (see Supreme Court Decision 2003Du2045, Jul. 11, 2003). Since Article 69(1) of the same Act provides that a person who wishes to be subject to paragraph (3) of the same Article shall file an application for reduction or exemption, the taxpayer shall bear the burden of proof as to the requirements for farmland residence and the requirements for direct cultivation for eight years or more as stipulated in paragraph (1) above

2) Furthermore, as with the degree of proof of the requirements for tax reduction and exemption in such tax litigation, as well as the proof of facts in civil litigation, it is not a natural scientific proof that does not constitute suspicion, but rather, it is necessary to verify a high degree of probability that there was any fact by comprehensively examining all evidence in light of the empirical rule, barring special circumstances, and the determination is necessary to an extent that ordinary persons would not be doubtful (see, e.g., Supreme Court Decision 2008Da6755, Oct. 28, 2010). However, in proving the requirements for taxation, where it is proved that the facts could be inferred in light of the empirical rule in the specific process, if it is proved that the burden of proof was fulfilled, and it is appropriate for the other party to prove the opposite reason that the facts are inappropriate to apply the empirical rule (see, e.g., Supreme Court Decision 2010Du23378, Aug. 17, 2012). The same applies to this case.

3) From this perspective, from this point of view, the Plaintiff cannot be said to have fulfilled its burden of proof on the re-development and cultivation of the deceased.

(a) The Deceased’s resident registration (No. 3) and the period between December 9, 1976 and April 12, 1979, for which the ownership transfer registration in the deceased’s name on the farmland of this case was completed, is only two-year leisure time.

(b) The Plaintiff asserted that the farmland in this case was directly acquired through testamentary gift or private donation on March 3, 1965 by the previous owner of the farmland in this case. However, this assertion is difficult to deem that the assertion itself is a clear assertion of specific legal grounds that have been verified by itself, and that the wife has performed farming work without having any other occupation, and it is difficult to readily conclude this based solely on the circumstances of the Plaintiff’s assertion.

The plaintiff asserts that the registration of the deceased's name was completed in administrative convenience, but it is difficult to dismiss the presumption of the registration of the deceased's name (No. 10) and the presumption of the registration of the deceased's name, and to recognize the process of acquisition of ownership as it is, as alleged by the plaintiff.

㈃ 원고는 망인의 처와 사촌동생, 이웃들의 확인서나 진술서(갑 제8호증의 1, 2, 제13 내지 17호증)와 원고의 중・고등학교 생활기록부(갑 제11, 12호증) 기재를 들어 망인의 재촌・경작사실을 인정할 수 있다고 주장하지만, 위 확인서나 진술서는 망인이 양도소득세 감면신청을 할 당시나 이 사건 소 제기 후에 작성된 것이어서 망인의 8년 이상 재촌・경작 사실을 앞서 본 입증책임에 관한 법리에 따라 인정하기에 충분한 증명력을 가진다고 할 수 없고, 생활기록부 기재 역시 원고가 1973년에서 1979년까지 6년간 중・고등학교에 재학할 당시 작성된 것으로서 이 사건 농지에 대한 8년 이상의 재촌・경작 사실을 직접 인정하기에는 부족한 단편적인 자료이다.

4) Ultimately, considering the Plaintiff’s assertion that there is a limit to the method of proving the re-development and cultivation of the deceased for a long time due to the lack of relevant public records, such as farmland ledger, there is insufficient evidence to recognize or commemorate the re-development and cultivation of the deceased for at least eight years, which meet the requirements for reduction and exemption of capital gains tax.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the court of first instance is just in its conclusion, and the plaintiff's appeal against this is dismissed as it is without merit. It is so decided as per Disposition.