District Court-2016-Gu Partnership-494 (2017.09)

The burden of proof on the requirements for reduction or exemption of the capital gains tax for not less than 8 years lies on the taxpayer claiming exemption.

(A) Direct cultivation means that a resident engages in the cultivation of the crops or perennial plants on his own land at all times or who cultivates or cultivates not less than half of the farming works with his own labor, and the burden of proof for such reduction or exemption requirements is legitimate because the Plaintiff, who is the person liable for duty to pay capital gains tax, has no other burden of proof.

Article 69 (Abatement or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

(Disposition)Revocation of a disposition to impose capital gains tax;

AA

BB Director of the Tax Office

December 6, 2017

January 10, 2018

1. The part against the Plaintiff regarding the claim for cancellation of local income tax in the judgment of the first instance shall be revoked.

2. The part concerning the claim for cancellation of local income tax among the instant lawsuit is dismissed.

3. The plaintiff's remaining appeal is dismissed.

4. All costs of the lawsuit shall be borne by the Plaintiff.

the jurisdiction of the Gu and the place of service in the Gu

The judgment of the first instance shall be revoked. On November 4, 2015, the Defendant revoked the disposition of imposition of capital gains tax of KRW 35,163,090 and local income tax of KRW 3,516,300 on the Plaintiff for the year 2013.

1. Details of the disposition;

The reasoning of the judgment of the court on this part is as stated in the reasoning of the judgment of the court of first instance, except for the following reasons: "The defendant, by conducting a field investigation on the plaintiff's capital gains tax, deemed that the plaintiff did not cultivate the land of this case for not less than eight years, and thus, on November 10, 2015, he issued a correction and notification of capital gains tax of 35,163,090 won and local income tax of 3,516,300 won belonging to the year 2013 to the plaintiff (hereinafter "the imposition disposition of capital gains tax of this case and imposition disposition of local income tax of this case" of this case; hereinafter "the disposition of imposition of capital gains tax of this case" of this case and the disposition of this case in combination is referred to as "each disposition of this case" of this case. Thus, this is cited as it is in accordance with the reasoning of the judgment of the court of first instance.

2. Summary of the plaintiff's assertion

A. After acquiring the instant land, the Plaintiff did not grant a reduction or exemption of capital gains tax pursuant to the former Restriction of Special Taxation Act even if he/she cultivated crops, such as vegetables, in the instant land and cultivated them directly for not less than eight years, and each of the dispositions of this case, which corrected and notified capital gains tax, is unlawful (hereinafter referred to as “instant Chapter 1”).

B. After transferring the instant land to December 2013 and August 2015, the Plaintiff received guidance and guidance repeatedly to the effect that “the amount of capital gains tax shall be reduced or exempted for not less than eight years since the instant land was owned by the public official in charge of the Defendant,” and accordingly, was proceeding to file a procedure for filing capital gains tax reduction or exemption, and the Defendant made each of the instant dispositions against the Plaintiff’s trust and expectation (hereinafter “section 2”). The Defendant violated the administrative trust protection principle (hereinafter “section 2”).

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Whether the part concerning the claim for revocation of imposition of local income tax among the instant lawsuit is lawful

The Defendant asserts that the imposition of local income tax is unlawful, since the imposition of local income tax is under the jurisdiction of the head of the local government having jurisdiction over the place of tax payment.

According to Article 93(1), (2), and (5) of the former Local Tax Act (amended by Act No. 12153, Jan. 1, 2014), local income tax on a resident’s capital gains is a local tax to be paid to the head of the Si/Gun/Gu having jurisdiction over the place of tax payment, and where the head of the tax office collects the local income tax in accordance with the method of assessment and notice according to the correction, determination, etc. under the Framework Act on National Taxes or the Income Tax Act, it shall be deemed that the head of the Si/Gun/Gu has imposed and notified the local income tax, and thus, the defendant seeking revocation of the disposition of taxation shall be the head of the relevant Si/Gun/Gu having jurisdiction over the place of tax payment (see Supreme Court Decision 2004Du1459, Feb. 25,

Therefore, the part seeking revocation of imposition of local income tax among the instant lawsuit is unlawful as it is against a non-qualified person.

B. Whether the disposition of transfer income tax of this case is legitimate

1) As to Chapter 1

The court's explanation on this part is the same as the entry on the 3rd to 5th page 9 of the judgment of the court of first instance. Thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2) As to the second proposal

In general, in administrative legal relations, in order to apply the principle of protecting trust to the acts of an administrative agency, the first administrative agency should name the public opinion that is the subject of trust to the individual, second, that the public opinion statement of an administrative agency is justifiable and trusted, there is no cause attributable to the individual, third, that individual should have trusted that opinion statement of the administrative agency, third, that administrative agency should have conducted any act corresponding thereto, and fourth, that administrative agency should have made a disposition contrary to the above opinion statement, thereby infringing on the interests of the individual who trusted that opinion statement of the administrative agency. Lastly, when taking an administrative disposition in accordance with the above opinion statement of the administrative agency, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 2004Du46, Jun. 9, 2006)

In this case, as alleged by the plaintiff, there is no evidence to support that the defendant ordered a public opinion statement by guiding or guiding the plaintiff that "the land of this case will be reduced or exempted from capital gains tax because it was self-farmland for not less than eight years", and thus, the defendant's disposition of imposition of capital gains tax of this case cannot be deemed to violate the principle of protection

Therefore, the plaintiff's assertion on this part is without merit.

5. Conclusion

Therefore, the part concerning the claim for revocation of imposition of local income tax in the lawsuit of this case is unlawful and dismissed, and the remaining claims of the plaintiff shall be dismissed as it is without merit. The judgment of the court of first instance on the claim for revocation of imposition of local income tax is unfair, and it is so revoked and the lawsuit corresponding to the revocation is dismissed, and the remaining appeal of the plaintiff is dismissed as it is without merit. It is so decided as per