In the case of provisional registration for security, the provisional registration is the same as the principal registration is completed, and the provisional registration has only the effect of security, so the seizure registration cannot be cancelled.

In a case where the issue is whether provisional registration is provisional registration of priority preservation, provisional registration of collateral security, or provisional registration, it is determined depending on whether it is made for the purpose of collateral security in substance, and it is not determined according to the formal statement, and the case is not determined according to the formal statement, and it is only the purpose of collateral security in substance and has the effect of security.

Article 35 of the Framework Act on National Taxes

2016Guhap51496 Revocation of revocation of revocation of attachment

AA

BB Head of tax office et al.1

November 22, 2016

January 17, 2017

1. The plaintiff's claims against the defendant are all dismissed.

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

Cheong-gu Office

1. Details of the disposition;

A. On December 21, 2005, the Plaintiff purchased 000,000 square meters (hereinafter referred to as “the farmland in this case”) at the JG-si, GG-si, on a level of 00,000 square meters (hereinafter referred to as “the farmland in this case”), but transferred the farmland in KRW 00,000,000 on July 7, 201.

B. Upon filing a preliminary return of capital gains tax on the instant farmland, the Plaintiff applied the provision on capital gains tax reduction or exemption for KRW 100 million to farmland substitute land under the Restriction of Special Taxation Act. On March 29, 2012, the Plaintiff acquired land of KRW 00,000,000 square meters (hereinafter “the instant substitute land”).

C. On October 2012, the Defendant conducted on-site verification for the reduction of capital gains tax, ex post facto management and confirmation of acquisition value, and confirmed that the sales contract related to the acquisition that the Plaintiff submitted at the time of filing a report on capital gains tax was voluntarily prepared, and corrected the conversion acquisition value of KRW 90 million,000,000,000,000,000,0000,0000,000,000,000,000,000,000,000

D. Around January 2015, the Defendant conducted the second on-site verification of the farmland in this case and the substitute farmland, and determined that the Plaintiff’s re-development is unclear. Accordingly, around March 2015, the Defendant conducted a tax investigation of capital gains tax on the Plaintiff. As a result, the Defendant confirmed that the Plaintiff had EE, who resides near the farmland in this case and substitute farmland, cultivated the farmland on behalf of the Plaintiff and did not reside in the area of the substitute farmland in this case.

E. Accordingly, on May 6, 2015, the Defendant issued a revised and notified the Plaintiff of KRW 00,025,290 for the taxable year 201 by exempting the Plaintiff from applying the special long-term holding deduction and the capital gains tax reduction and exemption pursuant to the farmland substitute land.

F. On July 10, 2015, the Plaintiff filed an objection with the National Tax Service on July 10, 2015, on the part of denying capital gains tax exemption and exemption and the part denying special deduction for long-term possession of the instant farmland as land for non-business use (hereinafter “instant disposition”). However, the Commissioner of the National Tax Service dismissed all Plaintiff’s claim on September 23, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 2 (including serial numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff resided in the location of the farmland in this case, and maintained the relevant land. Since the farmland in this case constitutes the land for business, the special long-term holding deduction should be applied in calculating capital gains tax. Therefore, the instant disposition that excluded the special long-term holding deduction from capital gains tax reduction is unlawful

2) Around October 2012, the Defendant issued on-site verification, and issued a disposition of revising and notifying transfer income tax based thereon, and did not take any particular measures for applying the special long-term holding deduction for capital gains tax reduction.

In addition, the Plaintiff paid the transfer income tax in accordance with the above notification disposition. Nevertheless, the Defendant’s disposition of this case is unlawful against the principle of trust protection.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the Plaintiff directly cultivated the farmland of this case

A) Articles 95(1) and 104-3(1)1 of the former Income Tax Act (amended by Act No. 10900, Jul. 25, 201; hereinafter the same shall apply) defines farmland which is not re-villaged or undeveloped for a period prescribed by Presidential Decree during the period owned by the owner of the land as land for non-business purposes and excludes special long-term holding deduction. According to Articles 168-6 and 8 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22950, Jun. 3, 2011; hereinafter the same shall apply), farmland excluded from non-business land should be deemed as farmland for which the owner is the same Si/Gun/Gu as farmland, or the area within Si/Gun/Gu adjacent thereto, or those who actually reside within the area within 20km in a straight line from the farmland, and if the owner does not own farmland for 20 years or more, it should be deemed as farmland for which 1/20 years or more have been owned, for 10 years or more.

B) Considering the following circumstances that can be acknowledged by comprehensively taking account of the facts acknowledged earlier and the overall purport of the pleadings as stated in Gap evidence Nos. 2, 10, and Eul evidence No. 2, the plaintiff is deemed to have failed to meet the self-sufficiency requirements under Article 2 subparag. 5 of the former Farmland Act. Therefore, the disposition of this case that deemed the farmland of this case as non-business land and excluded the special long-term holding deduction is legitimate, and the plaintiff's assertion is without merit.

(1) If a tax authority receives a written confirmation from a taxpayer in the course of conducting a tax investigation, it may not readily deny the value of evidence, barring any special circumstance where such written confirmation was drafted compulsorily against the intent of the originator, or it is difficult to consider it as a supporting material for specific facts due to lack of the content thereof (see, e.g., Supreme Court Decision 2001Du2560, Dec. 6, 2002).

② On March 16, 2015, in the process of the field investigation of the capital gains tax conducted in GG Tax Office, the Plaintiff failed to respond properly to the questions concerning seedlings related to farming houses, soil purchase details, pesticides used, etc. in the instant farmland. In particular, the Plaintiff stated that “E, the owner of the instant farmland, EE, the owner of the agricultural machinery, was engaged in all farming works in the instant farmland, and it is merely nothing to help the owner of the instant farmland when deemed necessary.”

③ In the case of agricultural machinery lease agreement drawn up between the Plaintiff and EE, most of the major agricultural works, such as rice pathy, seeds, mathy, internal organs, harvests, etc., are set to be performed by EE.

④ The instant farmland is considerably wide with a size of 0,165 square meters, and it is difficult to deem that the Plaintiff, an elderly female, directly cultivated one-half or more of the farming works with his own labor.

⑤ The evidence No. 7 presented by the Plaintiff on the ground that the Plaintiff directly cultivated the farmland of this case is a document prepared after the lapse of four years after the land transfer, and it is difficult to believe that there was no statement on factual relations. Moreover, even though the evidence Nos. 8, 9, and 10 was recognized as having been supported by the Plaintiff, it is insufficient to prove that the Plaintiff directly cultivated the farmland of this case. Furthermore, the evidence submitted by the Plaintiff alone is insufficient to acknowledge the self-defense, and there is no other evidence to prove otherwise.

2) Whether the principle of protection of trust is violated

A) In general in administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, first, the administrative agency should name the public opinion that is the subject of trust to an individual, second, the administrative agency should not be attributable to the individual when the statement of opinion is well-grounded, third, the individual should have trusted and trusted that the statement of opinion was justifiable, third, the administrative agency should have conducted any act in violation of the above statement of opinion, and fourth, the administrative agency should have made a disposition contrary to the above statement of opinion so that the interests of the individual who trusted the statement of opinion would be infringed. If any administrative disposition satisfies these requirements, it is unlawful as against the principle of the protection of trust unless it is likely to remarkably undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 98Du19070, Mar. 9, 19

B) On October 2012, the Defendant conducted on-site verification to confirm the reduction of capital gains tax, ex post facto management and acquisition value, and as a result, confirmed that the sales contract related to the acquisition that the Plaintiff submitted at the time of filing a report on capital gains tax was voluntarily prepared, revised the conversion acquisition value of KRW 090 million,000,000,000,000,0000,0000,0000,000,0000,000,0000,0000,000,0000,000,000,0000,0000

C) However, on-site verification conducted by the tax authority refers to the act of confirming facts by visiting the field according to the on-site verification plan against a taxpayer or a person, etc. who is deemed to have a transaction with the taxpayer to conduct affairs such as tax source management, simple taxation data processing, or collection of evidential materials for tax investigation (Article 3 subparag. 2 of the former Regulations on the Management of Investigation Affairs (Article 1877 of the National Tax Service Directive)), and in light of the fact that it is impossible to verify all misconducts of the subject through only one on-site verification, even though the Defendant did not take measures on the application of the Regulations on the Reduction and Exemption of Transfer Income Tax for Long-Term Possession Special Deduction at the time of correcting and notifying the acquisition tax due to the first on-site verification, it is difficult to view that

D) In addition, the Plaintiff reported the taxation of the instant farmland to have been cultivated directly without direct cultivation, and the fact that the Plaintiff had not cultivated directly as a result of the Defendant’s tax investigation revealed that the provisions on special long-term holding deduction and exemption from capital gains tax have been excluded. Examining such disposition circumstances, it is difficult to view that the expectation that the Plaintiff would receive the benefits of special long-term holding deduction and exemption from capital gains tax is worthy of protection, and therefore, it is reasonable to deem that there exists a cause attributable to the Plaintiff’s previous disposition, which the Plaintiff issued

E) Therefore, this part of the Plaintiff’s assertion is without merit.

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.