Gwangju District Court 2012Guhap2085 ( December 27, 2012)

early 201 Gwangju 5163 (2012.07)

Since farmland does not fall under farmland but cannot be deemed directly cultivated, it constitutes land for non-business use.

Since it can be recognized that the land was continuously planted from the date of donation to the date of transfer, and that the land was not cultivated by planting, cultivating, and harvesting it. Thus, it does not fall under farmland and even if it falls under farmland, it is ordinarily engaged in perennial plant cultivation or does not cultivate at least 1/2 of the farming work with its own labor. Thus, it falls under the land for non-business use.

2013Nu207 Revocation of Disposition of Imposing capital gains tax

NewAAA

(b) the Director of the Tax Office

Gwangju District Court Decision 2012Guhap2085 Decided December 27, 2012

June 27, 2013

July 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's disposition of imposition of capital gains tax of KRW 000 against the plaintiff on September 15, 201 shall be revoked.

1. Details of the disposition;

This Court's explanation is the same as the corresponding part of the judgment of the court of first instance, and it is also accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Point of imposing capital gains tax

Since part of the instant land falls under farmland because the Plaintiff resided in its seat and directly cultivated turd for the purpose of sale, and the period for which the Plaintiff did not cultivate turdddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

2) The point of imposing additional tax

In light of the fact that a preliminary return on capital gains tax was made on a part of the land for non-business use with the advice and assistance of a tax agent, and that the defendant also made a decision by applying the tax rate to the land for business use, and that the plaintiff filed an objection and filed a tax appeal, it was unreasonable to expect the plaintiff to fulfill his obligation to pay capital gains tax, and therefore, it is unlawful to impose penalty tax on the plaintiff on the ground that there are justifiable grounds that the plaintiff did not cause any negligence in the obligation to pay capital

B. Relevant statutes

It is as shown in the attached Form.

(c) Whether heavy taxation of capital gains tax is legitimate on the grounds that such land constitutes land for non-business;

1) Generally, the burden of proving the facts of taxation requirements is imposed on the tax authority in a lawsuit seeking revocation of taxation, and the defendant, who is the tax authority, bears the burden of proving the requirements of land for non-business with heavy transfer income tax (see Supreme Court Decision 2010Du8423, Sept. 30, 2010).

2) According to Article 104-3 (1) 4 of the former Income Tax Act (amended by Act No. 19270 of Dec. 26, 2008, and hereinafter referred to as "former Income Tax Act"), the Defendant asserts that part of the instant land is non-business land excluding the following. Since there is no dispute between the parties that do not fall under forest land and stock farm land, and it does not fall under farmland, Article 168-8 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301 of Feb. 4, 2009, hereinafter referred to as "the former Enforcement Decree of the Income Tax Act"), and Article 168-8 (1) of the former Enforcement Decree of the Income Tax Act (hereinafter referred to as "land actually used for farming, regardless of its land category as rice paddy, field and orchard, and part of the instant land which the Plaintiff has not been able to cultivate, and it means 20 years, and 3 years, and 3 years, 50000.

3) Even if certain land of this case falls under farmland, according to Article 104-3 (1) 1 (a) of the former Income Tax Act, and Article 168-6 (1) and Article 168-8 (2) of the former Enforcement Decree of the Income Tax Act, and Article 2 subparagraph 5 of the Farmland Act, and Article 168-8 (2) of the former Enforcement Decree of the Income Tax Act, the scope of farmland for which the farmland owner does not reside in the farmland for a given period, or does not own own farmland, and the farmland for which he does not own own farmland under Article 2 subparagraph 5 of the Farmland Act, is not farmland for which he engages in cultivating crops or growing perennial plants, or for which he does not own one half or more of the farmland in his own farmland, or for which he cultivates or cultivates with his own labor for not less than 10 years from March 20, 198 to September 26, 2008, and it does not constitute one-third or more of the previous Enforcement Decree of the Income Tax Act.

4) Therefore, the instant disposition that imposed capital gains tax on the ground that a part of the instant land constitutes non-business land is lawful, and the Plaintiff’s assertion on this part is without merit.

D. Whether the imposition of additional tax is lawful

1) In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed as prescribed by individual tax law in cases where a taxpayer violates various obligations, such as a return and tax payment, without any justifiable reason, and the taxpayer’s intent and negligence are not considered, while it is unreasonable for the taxpayer to be unaware of such obligations, such sanctions as those are imposed on the taxpayer, and there are circumstances where it is difficult for the taxpayer to reasonably present it, or where it is difficult for the taxpayer to expect the fulfillment of such obligations to do so, or where there is any justifiable reason not to be attributable to the taxpayer’s failure to fulfill his obligations (see, e.g., Supreme Court Decisions 96Nu18076, Jul. 24, 1998; 2009Du23747, May 13, 2010), and the Plaintiff’s assertion that the Plaintiff’s failure to pay the transfer income tax of this case does not appear to have been actually used by the Plaintiff in light of the following facts:

2) In addition, the imposition of a report and an additional tax for arrears cannot be contrary to the principle of proportionality as a binding act, and the disposition in this case is lawful, and the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just with this conclusion, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.