National Tax Service Review and Transfer 2010-0240 ( October 18, 2010)

It is difficult to regard as farmland as of the date of transfer.

It is insufficient to recognize that the land was used as farmland at the time of the transfer of land or was in a temporary state of absence, and most of miscellaneous and miscellaneous trees were left at the time of the transfer, and it is recognized that there was a natural state of neglect even though there were two times of miscellaneous and miscellaneous trees, so it is difficult to regard it as farmland

2011Revocation of disposition of revocation of imposition of capital gains tax

private XX

Permanent Residence of Head of Tax Office

September 21, 2011

October 19, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 70,271,010 for the year 2009 against the Plaintiff on July 9, 2010 is revoked (the amount of tax claimed in KRW 70,271,007 is a clerical error).

1. Details of the disposition;

A. On December 29, 1987 and May 4, 1998, the Plaintiff acquired and owned a volume of 24,514m2 (hereinafter “instant land”) for permanent residence on December 29, 198, and transferred it on December 30, 2009.

B. The Plaintiff filed an application for reduction or exemption of capital gains tax pursuant to Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter “former Restriction of Special Taxation Act”) on the ground that he directly cultivated the instant land for at least eight years, but the Defendant rejected such application and imposed and notified the Plaintiff of KRW 80,641,790 on July 9, 2009.

C. On August 24, 2010, the Plaintiff appealed and filed a request for review with the Commissioner of the National Tax Service on August 24, 2010. On October 18, 2010, the Commissioner of the National Tax Service determined the acquisition value of the instant land as the actual transaction value, including KRW 51,40,000 for the farmland reclamation costs in the necessary expenses, and decided to rectify the tax base and amount of capital gains tax (i.e., the said amount of capital gains tax was reduced to KRW 70,271,010; hereinafter referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1-3-1 to 4-3, Eul evidence 1-1 to 3, the purport of whole pleadings

2. The plaintiff's assertion is as follows.

The Plaintiff had cultivated trees at the risk of a multi-vegetable plant from November 2001 to December 2009 on the instant land for not less than eight years. Therefore, the instant disposition is unlawful.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. Land which is not actually cultivated as of the date of transfer cannot be deemed as farmland as of the date of transfer, regardless of whether it is by the landowner’s own consent or by another person, and as of the date of transfer, it cannot be deemed as farmland as at the time of non-taxation of capital gains tax (see, e.g., Supreme Court Decisions 2004Du5003, Jun. 23, 2005; 2004Du5003, Nov. 12, 1991; 91Nu7422, Nov. 12, 1991); and the fact of self-cultivation of farmland is proved by the claimant (see, e.g., Supreme Court Decision 92Nu1893, Jul. 13, 1993).

B. First, according to each description of evidence Nos. 4-2 and 5-2, which was farmland as of December 30, 2009 at the time of transfer, the land category of the instant land was "B" at the time of transfer (the "forest of November 8, 2001 changed from "B" to "B". However, it is insufficient to find that the above facts and evidence Nos. 11-1 through 13-6 were being used as farmland at the time of transfer or used as farmland at the time of transfer, and there is no other evidence to acknowledge this, rather, it is difficult to view the instant land as part of the instant land at the time of transfer because the above facts and evidence Nos. 16, No. 1-2, Nos. 1-2, 2-1 through 3-5, Nos. 5, 4-4, 6-1 through 15, or each part of the instant land at the time of transfer, and most of the instant land at the time of the first day and second day of transfer.

Even if it is assumed that the portion of the instant land at home was farmland as of the date of transfer, it is difficult to accept the Plaintiff’s assertion on the following grounds: (a) whether the Plaintiff directly cultivated the perennial plants, such as trees and morals, at the risk of two years or more before the date of transfer; (b) whether some testimony of Gap evidence Nos. 9-1 through 4; and (c) witness ChoB is difficult to believe; and (d) the statement of evidence No. 10-1 through No. 13-6 and No. 17, respectively; and (e) there is no other evidence to acknowledge it.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.