early 2011 Middle 1911 (Law No. 19, 2011)

It cannot be recognized that farmland is farmland or temporary closure at the time of transfer.

In light of the fact that cement packaged as at the time of the transfer of land and used as a field yard of solid goods, etc., and the fact that it was not submitted objective evidence as to self-defensive facts, it does not constitute land subject to non-taxation of the capital gains tax because it cannot be recognized that it is farmland

2011Gudan2581 Revocation of Disposition of Imposing capital gains tax

KimA

Head of Namyang District Tax Office

January 9, 2012

January 30, 2012

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 KRW 112,789,760 on November 1, 2010 and KRW 6,749,950 on capital gains tax for the year 2009, as well as special rural development tax for rural development, and KRW 7,89,580 on the Plaintiff shall be revoked.

1. Details of the disposition;

A. On August 3, 1984, the Plaintiff acquired and owned 126 m25 m2, Guro-gu Seoul OOdong, 126 m2 (hereinafter “instant land”) and transferred it to Guro-gu Seoul Metropolitan Government on May 20, 2009.

B. On November 1, 2010, the Plaintiff reported the transfer income tax on the instant land to the Defendant for a period of eight years or more, and thus, the Defendant did not err in the application for reduction or exemption of the transfer income tax on the instant land, and imposed and notified the Plaintiff of the transfer income tax on November 1, 2010 on the ground that the instant land does not fall under the reduction or exemption of the transfer income tax under Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter “Act”).

C. On January 3, 2011, the Defendant issued a corrective disposition to reduce capital gains tax to KRW 112,789,760, and special rural development tax to KRW 6,749,950, respectively, on the ground that some errors were found in the above taxation (hereinafter “instant disposition”). On November 1, 2010, the Defendant issued a corrective disposition to impose capital gains tax of KRW 112,789,760, and special rural development tax of KRW 6,749,950, additional dues of KRW 7,89,580, and KRW 112,789,760, which was not reduced due to the above corrective disposition.

D. On December 10, 201, the Plaintiff dissatisfied with the instant disposition and filed an appeal with the Intellectual Property Tribunal on May 13, 201, and the Tax Tribunal dismissed the appeal on July 19, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, Gap evidence Nos. 1, 2, Gap evidence Nos. 3, Eul evidence Nos. 1 and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, while residing in the location of the instant land for not less than 8 years and residing therein, from the end of 1999 to the point where the Plaintiff was unable to grow a farmer due to aggravation of the Plaintiff’s health, he was announced to expropriate the instant land during the process of disputeing with KimD without the Plaintiff’s permission. Since the instant land was transferred from the temporary closure to the point where the Plaintiff was transferred to the point of view, the Defendant’s disposition was unlawful. Accordingly, the Defendant’s disposition otherwise reported was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) The principle of strict interpretation derived from the principle of no taxation without law is applicable not only to the cases that meet the taxation requirements, but also to the cases that meet the requirements for non-taxation and tax reduction and exemption. The expanded interpretation or analogical interpretation of the requirements for non-taxation or tax exemption and exemption as favorable to taxpayers without any justifiable reason causes a result contrary to the principle of fair taxation, which is the basic ideology of the tax law, and thus should not be allowed (see, e.g., Supreme Court Decision 2005Da19163, May 25, 2006). A person who asserts the above fact is liable to prove it (see, e.g., Supreme Court Decision 92Nu1893, Jul. 13, 193)

(2) The land which is not actually cultivated as of the date of transfer shall not be considered as farmland as of the date of transfer, unless it is in a state of temporary closure, regardless of whether it is by the landowner’s own person or by another person, and it does not constitute land subject to non-taxation of capital gains tax (Supreme Court Decision 2004Du5003 Decided June 23, 2005; Supreme Court Decision 2004Du503 Decided November 1, 1991).

12. In the instant case, the evidence submitted by the Plaintiff alone is insufficient to acknowledge that the instant land was farmland as of May 20, 2009 at the time of transfer or was temporarily closed, and there is no other evidence to acknowledge it otherwise. Rather, there is no other evidence to acknowledge it. Rather, the following circumstances acknowledged by comprehensively considering each of the above evidence and the overall purport of pleadings as follows: ① the instant land at the time of the transfer of the instant land was packed in cement, and used as an open site, such as water, waste, etc.; ② the Plaintiff failed to submit data on the lawful purchase of farmland, machinery, fertilizers, etc. for eight or more years; ③ the instant land was left unattended from the end of 1999 to the Plaintiff’s land abandoned in KimD in around 200, without the Plaintiff’s consent, and the Plaintiff could not be deemed to have been aware of the fact that the instant land was sold to the Plaintiff, other than the Plaintiff’s land subject to a fine of 160,000 won until 20,000 won.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed for reasons.