Appellate Court 2014 Schedule 3498

The main issue is that there is no fact that farmland was used as farmland even during the transfer date and retention period, so the denial of reduction and exemption is legitimate for 8 years.

The rejection of reduction or exemption is justifiable in the case of the farmland in accordance with video data, etc. that has not been used as farmland even during the date of transfer and retention period, and the rejection of reduction or exemption is justifiable in the case of Ginam, and since the building at issue does not correspond to one house for one household at the time of the transfer date, the land at issue

Article 89 of the Income Tax Act

2015Guhap5027 Revocation of Disposition of Imposing capital gains tax

KimA

00. Head of tax office

May 21, 2015

June 18, 2015

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of KRW 00,000,000 and special rural development tax of KRW 00,000,000, imposed on the Plaintiff on October 0, 2014 by the former Cheong-dong Branch Defendant on the Plaintiff on the 2012.

1. Details of the disposition;

(a) Acquisition of inherited property;

1) The Plaintiff’s father, KimB (hereinafter “the decedent”) died on October 0, 200, and his heir was the wife, KimDD, KimE, KimF, KimGG, and the Plaintiff. On October 0, 2000, the Plaintiff entered into an agreement on the division of inherited property between the co-inheritors of the inheritee and the co-inheritors of the inheritee on October 0, 200 with the content that the Plaintiff would own the inherited property of 00 square meters of 00,000,000 square meters of 00,000-0,000 square meters of 1,000-0,000 square meters of 1,000-0 square meters of 1,000 square meters of 1,000-0 square meters of 1,000-0.

3) In addition, on October 00, 2012, the Plaintiff entered into an agreement on the division of inherited property with co-inheritors of the inheritee, with the purport that the Plaintiff owns a general wood structure of 00 -00 -00 - 000 - 000 - 000,000-28, which is an inherited property, and a general wood structure of 00 m20 m2 and 00 m20 m20 m2 (hereinafter “the instant house” by combining a m2) with the Plaintiff, and completed the registration of preservation of ownership on the instant housing on October 0, 2012

(b) Acceptance, etc. of inherited property;

Pursuant to Article 201-000 of the Notice of 00 Metropolitan City (applicable law), the instant housing was transferred to Busan Metropolitan City by means of a consultation on public land as of October 00, 2012 (the total area on the registry of the instant housing is 000 square meters or 000 square meters, the total area on the registry of the instant housing is 00 square meters), the total area on the registry of the instant housing was 00 square meters or 000-0 square meters, 000 square meters, 000 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 200 00 200 200 00 200 200 200 00 200 2013.

C. Sale of the apartment owned by the plaintiff

On October 0, 2004, the Plaintiff acquired J apartment Nos. 00-000, J apartment No. 0000, J apartment No. 0000 (hereinafter referred to as the “instant apartment”) from 00,000,000, and sold the instant apartment to le II on October 0, 2012, and on October 0, 2012, the ownership transfer registration was completed in the name of le II for the instant apartment.

(d) Transfer tax return;

1) On October 00, 2013, the Plaintiff filed an application for reduction of or exemption from capital gains tax with respect to the farmland of this case on a eight-year basis, following a revised return at the time of filing a preliminary return of capital gains tax, and filed a return and payment of KRW 00,000,000,000 for the remaining area, 00 square meters among 00,000,000 00 m2 and 000 m2 (hereinafter referred to as “instant appurtenant land”) based on one house for one household, based on a non-taxation on one house for one household, except for the return.

2) On October 00, 2014, regarding the Plaintiff’s revised return, the Defendant denied the reduction or exemption on the instant farmland by using it as farmland at the time of transfer, not as farmland at the time of transfer for eight years, and (2) the instant housing was expropriated on October 0, 2012, and the Plaintiff owned the instant apartment at the time of expropriation, and thus, did not fall under the requirements for non-taxation on one house per one household, and accordingly, denied the tax exemption on one house per household on the ground that the instant land, which is the land annexed thereto, does not fall under the requirements for non-taxation on one house per household.

3) Accordingly, on October 0, 2014, the Defendant rendered a disposition imposing KRW 000,000,000 for capital gains tax for the year 2012 and special rural development tax for the Plaintiff (hereinafter “instant disposition”).

4) The Plaintiff appealed and filed a request for review with the Tax Tribunal on October 0, 2014, but was dismissed on October 0, 2014.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 15, Eul evidence 1, the purport of whole pleadings

2. The legality of disposition.

A. The plaintiff's assertion

Since the farmland in this case was cultivated by the decedent on October 0, 200 and directly cultivated until the decedent died on or around 1957, and thereafter, the deceased Sung JJ, the deceased’s wife’s wife, and the Plaintiff, a son, cultivated the farmland in this case. However, at the time of accepting the farmland in this case, there was a circumstance that part of the land in this case was temporarily used as a site site due to the lessee’s non- cooperation, and it was unlawful to determine that the farmland in this case was not farmland at the time of transfer. Further, the housing in this case and the land in this case should be deemed as a transfer act in determining whether the land in this case were non-taxation for one household, and the housing in this case should be determined as of October 1, 2012 when the compensation for the land in this case was paid to the decedent, and as of October 1, 2012 when the housing in this case was purchased by the Defendant on October 1, 2010.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

1) Whether exemption from self-employed farmland is applied

According to Article 69 (1) of the Restriction of Special Taxation Act, with respect to income accruing from the transfer of land directly cultivated by a resident living in the seat of farmland for not less than eight years, the tax amount equivalent to 100/100 of capital gains tax may be reduced or exempted. According to Article 66 (11) of the Enforcement Decree of the Restriction of Special Taxation Act, if the heir continues to cultivate the inherited farmland for not less than one year, the period acquired and cultivated by the decedent shall be the period during which the heir cultivated: Provided, That in determining whether the farmland is exempt from capital gains tax as self-owned farmland for not less than eight years, even if the land category in the public record is included, it shall be actually used for farming as of the date of transfer, and it shall not be deemed that the farmland is not temporarily used as farmland as of the date of transfer by the landowner or by another person, and it shall not be deemed as farmland as of the date of non-taxation for 20 years before and after the death of the decedent, and according to Article 66 (11) of the Enforcement Decree of the Restriction of Special Taxation Act, it shall be recognized that the decedent acquired the farmland as of this case for 20 years thereafter.

Therefore, the defendant's disposition denying the reduction or exemption on the land of this case is legitimate.

2) Whether one house is applied to one household

The purport of Article 89(1)3 of the former Income Tax Act (amended by Act No. 12169, Jan. 1, 2014) and Article 154(1)3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 24356, Feb. 15, 2013) does not impose income tax on the income accruing from the transfer of one house for one household. Thus, since one house owned in Korea is the basis of citizen's residential life, the transfer of one house in Korea by one household is deemed to be not a temporary residence or transfer of one house for the purpose of acquiring capital gains or speculation, by failing to impose income tax on one house for the purpose of guaranteeing the stability of citizen's residential life and the freedom of residence, and non-taxation of one house as well as one house for one household in certain cases is to establish a non-taxation building, and if a building is transferred together with an ordinary building and an economic appurtenant land for one household in most cases, it should be viewed as a transfer of one house.

However, the issue of whether the transferred asset constitutes one house for one household shall be determined at the time of transfer of the relevant house, and as long as the land and buildings are separate objects of taxation in the transfer income tax, the time of transfer shall be determined individually. According to the above facts of recognition, the instant house, which was transferred through consultation between the Plaintiff and the 00 Metropolitan City, shall be deemed the time of transfer on October 00, 201, which is the date of receiving the compensation (deposit date). The instant land transferred through expropriation shall be deemed the time of transfer on October 00, 2012, which is the date of receiving the compensation (deposit date), which is the date of receiving the compensation that can be deemed the date of settlement (deposit date). As seen earlier, the Plaintiff had the instant apartment at the time of transfer, and therefore, it does not constitute one house for one household at the time of transfer of the instant house.

In addition, land annexed to a transferred building is exceptionally exempt from taxation only when the transferred building corresponds to one house for one household. Thus, if the transferred building does not correspond to one house for one household, only one house for one household cannot be exempted from taxation. Therefore, only one house for one household cannot be applied to the land annexed to this case.

Ultimately, the Defendant’s disposition of this case is lawful, premised on the premise that the instant house and the instant appurtenant land do not constitute one house for one household.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.