Suwon District Court 201Gudan2673 (O1, 2012)

National Tax Service Review and Transfer 2011-0065 (Law No. 22, 2011)

It is insufficient to recognize that the previous land is farmland actually used for farming at the time of transfer.

In light of the fact that the previous land appears to be forest land under the satellite photograph and confirmed as forest land as a result of the on-site verification by the tax authorities, and whether it is unclear whether it was planted as forest trees or landscape trees on the ground, etc., it is insufficient to recognize that it is farmland actually used for cultivation at the time of transfer, and it cannot be deemed that it was directly cultivated.

2012Nu20627 Revocation of Disposition of Imposing capital gains tax

literatureA

Head of the Pakistan Tax Office

District Court Decision 2011Gudan2673 Decided June 11, 2012

March 14, 2013

April 11, 2013

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 shall revoke the disposition of imposition of capital gains tax of KRW 000 against the plaintiff on December 1, 2010.

1. Quotation of judgment of the first instance;

The reasoning of this court's decision is as follows: 2.c. (2) of the reasoning of the judgment of the court of first instance (from 4.10 to 5.13 of the first instance), except for the dismissal as follows:

2. Parts to be dried;

[2] As to whether the previous land of this case is farmland of 000 Magri-ri 000 Magri-ri 565 Magri-ri 00 Magri-ri (hereinafter “O0 Magri-ri 00”)

A) Even if land category on the public register is farmland, it cannot be deemed farmland that is not actually used for farming at the time of transfer, and thus does not constitute farmland subject to exemption from capital gains tax under Article 70(1) of the former Restriction of Special Taxation Act (see Supreme Court Decision 2004Du5003, Jun. 23, 2005).

B) In full view of the overall purport of the arguments in Gap evidence 34 to 36, Eul evidence 11 (the number is included in the above 3; hereinafter the same shall apply), and LeeB, its husband, at around October 208, is not found to have been changed to the above 56 weeks, 5 poppy tree 60, 1 5 poppy 426, 47 poppy 57, 37 poppy 57, 37, 15 poppy 30, 15 poppy 15, and 350, 300, and 400, the above land was found to have been changed to the above 40, 300, 300, 300, 40, and 30,000, and 30,000, the above land was found to have been changed to the above land.

(3) Whether the Plaintiff directly cultivated the previous land for more than three years

In light of the following circumstances, it is insufficient to recognize that the entries and images in Gap's three, 7, 25, 40, 43, and 2 through 4, 7, 8, and 11 are directly cultivated by the plaintiff for at least three years, and there is no other evidence to support those entries and images in Gap's submitted 21, 24 through 29, 32, 38 through 40, and 43.

A) As to trees located on the above OO Ri 601 land among the previous land of this case, this caseB, the husband of the plaintiff, received compensation for the above trees as the owner of the above trees, and at least it is difficult to view that the above land was cultivated directly by the plaintiff.

B) The Plaintiff was residing in an apartment from the date of acquisition of the previous land to the date of transfer, and operated a cosmetics retail business from October 1, 2009 to the date.

C) While the Plaintiff alleged that he cultivated bean, straws, straws, and straws in the remaining land except the above OO00 land among the previous land of this case, the Plaintiff did not receive any compensation from Gyeonggi-do that acquired the above land through consultation.

D) In the farmland ledger drawn up on July 12, 2004, the Plaintiff stated that the farmland of 3,545 square meters (the 1,501 square meters + dry field 2,044 square meters) located in OO-dong in Pakistan-si, Pakistan-si, and there is no indication as to whether or not the previous land of this case is contaminated, and the current status of the change in the ownership of farmland (Evidence No. 43-3) states that "a confirmation as to the previous land of this case" as to the previous land of this case was changed on February 5, 2007, before the Plaintiff transferred the previous land of this case.

E) It seems difficult for the Plaintiff to directly cultivate all of the previous land including the previous land of this case, which is located in the area of 3,545 square meters of land located in the area of Pakistan-si in the above farmland ledger (the Plaintiff asserted that the Plaintiff cultivated the previous land of this case for not less than two years after transferring the previous land to Gyeonggi-do. Accordingly, the Plaintiff transferred the previous land of this case to the previous land of this case and directly cultivated the previous land of this case as well as the previous land of this case. Since October 1, 2009, the Plaintiff directly cultivated the previous land of this case as well as the previous land of this case, and it seems that it is virtually impossible, but it is actually impossible to do so).

F) The Plaintiff did not submit objective data related to the disposal of crops claimed to have cultivated in the previous land of this case.

(4) Whether the Plaintiff directly cultivated the instant substitute land for more than three years

In light of the following circumstances, it is not enough to recognize that the testimony of Gap and 11 through 18 and 19 submitted by the plaintiff directly cultivated the substitute land of this case for 3 years or longer, and there is no other evidence to support the fact that the plaintiff directly cultivated the substitute land of this case for 3 years or more by considering the descriptions and images of Gap, 10, 23, 30, 31, 37, 44 through 49, and 44 through 7, and 13.

A) On May 10, 2007, the Plaintiff purchased the instant substitute land from the LaborCC in 000 won, and agreed to bear the Plaintiff when the transfer income tax is imposed on the TradeCC. On May 31, 2007, the Plaintiff completed the registration of ownership transfer based on the said purchase in the name of the Plaintiff on May 31, 2007, and completed the registration of ownership transfer based on the said purchase in the name of the Plaintiff, and completed the registration of establishment of a neighboring mortgage establishment with the mortgagee, Pakistancheon Livestock Cooperatives, and the debtor.

B) On December 10, 2009, the Plaintiff sold the instant substitute land to KimD at KRW 000, while on December 28, 2009, the first intermediate payment of KRW 000,000 at the time of the contract, while on January 8, 2010, the second intermediate payment of KRW 000 at the end of the contract, and on November 30, 2010, the remainder amount of KRW 000 at the end of the contract, respectively. However, on November 30, 2010, the second intermediate payment of KRW 000 at the time of KimD succeeded to the Plaintiff’s above collateral obligation to the Plaintiff’s Pakistan Cooperative Livestock Industry Cooperative, and on the remainder of KRW 000 at the time of the payment of the remainder, the Plaintiff’s second intermediate payment of KRW 200 in lieu of the foregoing KimD’s obligation to pay the said collateral, and the mother of the Plaintiff’s purchase and lending of KRW 000 from the sales contract.

C) In a way to secure ownership of the instant substitute land on December 29, 2009, KimD assumed the mortgage obligation against the instant substitute land with respect to the Plaintiff at KRW 000 of the maximum debt amount (the amount equivalent to twice the above purchase amount) and the Plaintiff, the mortgagee, and the Plaintiff on January 7, 2010, and the Plaintiff on January 21, 2010. On July 21, 2010, Kim Jong-do completed the registration of ownership transfer with respect to the instant substitute land in its name, and cancelled the registration of ownership transfer with respect to the instant substitute land at KRW 70 million of the highest debt amount.

D) On November 19, 2009, the mother of KimD drawn up a lease agreement (A evidence 23-1) with the content that the mother of the KimD sets out a lease agreement between the Plaintiff’s East East E, and that the F shall rent the OO-dong 000 O-O apartment 1205,000 O-O-O apartment 1205, and the period from December 10, 2009 to December 12, 2009.

E) According to the above sales contract made between the Plaintiff and KimD, and Kim DD 1 was established on December 29, 2009 with a maximum debt amount of 00 won for the land of this case. On January 7, 2010, Kim D 200 won was paid in 00 won for the remainder of 10,000 won for the land of this case, which was paid to the Plaintiff under the above sales contract after Kim D 2 was established on the land of this case. The Plaintiff appears to have paid the remainder of 10,000 won for the land of this case to the Plaintiff for 1,000 won for the remaining 4,00 won for the land of this case. However, the Plaintiff did not appear to have paid the remainder of 0,000 won for the land of this case to the Plaintiff, which was already transferred to the Plaintiff on 20,000 won for the remaining 4,000 won for the land of this case.

F) As seen earlier, it seems difficult for the Plaintiff to directly cultivate the previous land in addition to the land of this case and the farmland located in OOdong in addition to the land of this case in the course of carrying on the cosmetics retail business. Moreover, in the photographs (No. 3) taken the large land of this case around August 27, 2008, August 25, 2009, and around March 2010, the pictures (No. 7 evidence and the records No. 103) taken the large land of this case, which had been cultivated by being exposed to red soil as they were exposed to the large land of this case (i.e., the evidence No. 7 and the records No. 103). In full view of these circumstances as seen earlier, it is difficult to recognize that the Plaintiff directly cultivated the large land of this case for three years or more.

(5) Sub-decisions

The Plaintiff is deemed to have failed to meet the requirements for reduction and exemption of capital gains tax under Article 70 (1) of the former Restriction of Special Taxation Act. Therefore, the instant disposition imposing capital gains tax on the transfer of the previous land is lawful.

3. Conclusion

If so, the judgment of the first instance is justifiable, and the plaintiff's appeal is dismissed as it is groundless.