Incheon District Court 2017Guhap52638 ( July 12, 2018)

The addition of the grounds for disposition in the lawsuit of this case constitutes an addition or alteration of the grounds for disposition within the scope of maintaining the identity of the disposition.

The reason can be submitted in support of the legitimacy of the tax base or amount of tax recognized by the relevant disposition, or exchanged or changed within the scope of maintaining the identity of the disposition. It does not necessarily mean that only the data at the time of the disposition should be determined whether the disposition is legitimate, or only the reasons at the time of the disposition can be asserted.

Article 89 of the Income Tax Act

2018Nu58099 Revocation of Disposition rejecting capital gains tax rectification

김@@외1

00. Head of tax office

Incheon District Court Decision 2017Guhap52638 Decided July 12, 2018

March 4, 2019

March 20, 2019

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

제1심 판결을 취소한다. 피고가 2016. 7. 6. 원고 김@@에 대하여 한 양도소득세 경정

The rejection of a claim and the rejection of a request for correction of capital gains tax against plaintiffs Kim* on July 8, 2016

each subparagraph shall be revoked.

1. Quotation of judgment of the first instance;

The reasons why this Court uses as to this case are asserted by the plaintiffs in the trial.

The reasoning of the judgment of the court of first instance shall be stated in addition to the determination referred to in paragraph 2 below.

Therefore, Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act are as is.

this chapter.

2. Additional matters to be determined;

A. The plaintiffs' assertion

"The land of this case constitutes farmland as land used for cultivating landscape trees, etc.", which is an additional disposition ground for the defendant in the lawsuit of this case, is not identical to the original disposition ground and basic factual relations. Thus, the alteration of the disposition ground is not allowed.

B. Determination

1) The subject matter of a taxation revocation lawsuit is objective existence of the amount of tax determined by the tax authority. As such, the tax authority may submit new data that can support the legitimacy of the tax base or amount of tax recognized in the pertinent disposition, or exchange and change the reasons within the scope that maintains the identity of the disposition, during the course of the lawsuit, to the extent that the same is maintained (see, e.g., Supreme Court Decisions 2001Du1994, Oct. 11, 2002; 2010Du7277, May 24, 2012). Such a legal doctrine likewise applies to a lawsuit seeking revocation of the disposition of refusal to correct the amount of tax (see, e.g., Supreme Court Decision 2006Du13497, Dec. 24, 2008).

2) Examining the following circumstances in light of the legal principles as seen earlier, the Defendant’s addition of the grounds for disposition in the instant lawsuit constitutes an addition or modification of the grounds for disposition made within the scope that maintains the identity of the disposition, and thus, is permissible. The Plaintiffs’ assertion cannot be accepted.

The original reason for the disposition of this case is that " even if the land of this case falls under the land for landscape crop planting business, the land of this case constitutes land for non-business use, and thus, the special long-term holding deduction cannot be applied to the land of this case, since the amount of income of landscape crop planting business on the land of this case is based on the period during which the plaintiffs owned the land of this case." Further, the reason for additional disposition by the defendant in the lawsuit of this case is that "the land of this case falls under the land used for growing landscape trees, etc., and the land of this case falls under the land for non-business use due to the plaintiffs' failure to reside in the farmland, and therefore, the special long-term holding deduction cannot be applied to the land of this case." The reason for additional disposition as mentioned above is a common factor that the plaintiffs owned the land of this case as well as the fact that there was trees, etc. for landscape gardening,

The initial reason for disposition pertains to whether Article 104-3 (1) 4 (c) of the former Income Tax Act can be applied to the land of this case on the premise that the land of this case is not farmland, and the additional reason for disposition pertains to whether Article 104-3 (1) 1 (a) of the former Income Tax Act can be applied to the land of this case on the premise that the land of this case is farmland. As such, the reason for initial disposition and the additional reason for disposition are either "land other than farmland" under Article 104-3 (1) 4 of the former Income Tax Act or "farmland other than farmland" under Article 104-3 (1) 1 of the former Income Tax Act, or there is a difference in the legal assessment of whether the land of this case can be evaluated as "farmland", but it can not be seen as a difference in the legal assessment of whether the land of this case can be evaluated as "farmland," and it can not be viewed as a difference in the basic facts entirely different.

The reason for the initial disposition does not change the factual basis itself, but differs from the legal assessment of the facts, namely, whether the instant land falls under farmland or the land for landscape crop planting business, other than farmland. The legal assessment of whether the instant land constitutes farmland is the land for landscape crop planting business. Although the facts are added to the facts that the instant land falls under the land for landscape crop planting business, other than farmland, and the facts that “the amount of income from land for landscape crop planting business falls short of the standard size, during the period for which the Plaintiff owned is the land for the land for landscape crop planting business,” and the additional reason for the disposition are added to the facts that “the Plaintiff did not reside in the seat of the land,” it cannot be deemed a separate disposition or multiple dispositions that are not recognized as identical through the change of the reason for disposition, solely on the basis of such circumstances. This is more true in light of the fact that the instant land falls under the land for landscape planting business other than farmland (the ground for initial disposition) and the instant land falls under the farmland (the additional reason for disposition).

The grounds for the initial disposition of this case and the grounds for additional disposition are related to the transfer income tax that share the taxable unit and the tax item, and the source of the income is based on the fact that the plaintiffs owned the land of this case and transferred it to others. As such, there is no difference between the taxable unit and the tax item before and after the change of the grounds for disposition, and there is no difference in the income source of the transfer income tax. In the same way, the specific grounds for which the special long-term holding deduction is not applicable, should be deemed as merely an attack and defense method in

3. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed in entirety due to the lack of grounds, and the judgment of the court of first instance is delivered.

The plaintiffs' appeal is dismissed as it is reasonable to conclude this conclusion.