early 209 Heavy2156 (2009.07)

Where forest land and forest trees are transferred together, income classification;

As forest land and forest trees are transferred together, the transfer of forest trees is claimed as business income, but there is no fact that they were cut for business purposes prior to the transfer of forest land, there is no record of business registration, and there is no special agreement to treat the forest separately in the sales contract, and it is reasonable to view the transfer of forest land as the cost for the transfer of forest land.

The contents of the decision shall be the same as attached.

Park ○

The superintendent of the tax office

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The defendant's refusal to request the correction of transfer income tax for the year 2008 against the plaintiff on March 5, 2009 shall be revoked.

1. Circumstances of the disposition;

(a) On May 16, 197, the plaintiff had completed the registration of ownership transfer, which is the cause of the inheritance in the self-consultation on May 13, 1975, in view of the forest land listed in the annexed List (hereinafter referred to as "each forest of this case").

B. The Plaintiff sold each of the instant forest land on January 3, 2008, and completed the registration of ownership transfer on the grounds of sale on October 15, 2007 with respect to the forest land listed in the separate sheet 1 through 4 from among the instant forest land on January 3, 2008, each purchaser made a preliminary return of transfer income tax by calculating transfer margin (transfer value 1,180,800,000, acquisition value 34,039,39,392) based on the actual transaction price. On April 15, 2008, each purchaser made a preliminary return of transfer income tax by calculating transfer margin (transfer value 1,180,80,000, acquisition value 26,497,4964, and 205,000,000 won) as the actual transaction price after completing the registration of ownership transfer on the grounds of sale on April 15, 2008.

C. On January 15, 2009, the Plaintiff calculated the transfer income tax with the acquisition value applied to the Defendant on January 15, 2009, and calculated the transfer income tax with the acquisition value applied to the conversion acquisition value of the fictitious acquisition date on January 1, 1985. ② Income from the transfer of a forest land which is a real estate (forest land) is income as transfer income, and income from forest trees (forest trees) which were afforested in each forest of this case (hereinafter “forest trees”) shall be classified as business income, and filed a request for correction that the transfer income tax shall be corrected to 13,589,224

D. On March 5, 2009, the defendant accepted the plaintiff's claim for correction and corrected KRW 156,661,463 out of KRW 451,210,242 of the transfer income tax reported and paid by the plaintiff (in conclusion, the transfer income tax paid by the plaintiff shall be KRW 294,548,779). The above claim for correction was rejected on the ground that the income from the transfer of the forest item of this case cannot be viewed as business income (hereinafter "the above claim for correction was referred to as "the claim for correction of this case" and "the rejection disposition against the claim for correction of this case" is referred to as "the disposition of this case").

E. The Plaintiff appealed against the instant disposition and filed a request for a tax trial, but the Director of the Tax Tribunal dismissed the said request on September 7, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 7 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(a) Business income which is a forestation; and

① On May 13, 1975, the Plaintiff acquired the forest trees of this case, such as pine trees, ducks trees, and Arabic trees afforested in around 1962 on the forest land of this case and Dong and acquired them by inheritance on May 13, 1975. Each forest land of this case is not only close to the Plaintiff’s house, but also in the forest land of this case up to the early place. In addition, the Plaintiff was running a growing business by additionally visiting a mountain, such as planting trees, preventing blight and harmful insects, preventing fire, and preventing damage to the forest, etc. Under the relevant statutes such as Article 19(1) of the Income Tax Act, etc., the Plaintiff imposed income from such forest land by adding income from such forest land to business income. Article 51(8) of the Enforcement Decree of the Income Tax Act provides that the transfer value of forest land shall be the amount equivalent to the standard market value, and the total amount of income from the transfer of forest land shall be imposed on the forest land of this case after deducting the income from the standard market value.

(2) Principle of trust protection or self-detention

The tax authorities imposed the transfer value of the forest trees as business income in the same case as the Plaintiff or in the same case, and have determined that the transfer value of the forest trees should be taxed as business income in various established rules, requests for examination, and requests for adjudication. Therefore, even in this case, the transfer value of the forest trees of this case should be taxed as business income.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Determination

(1) Determination on the assertion of business income due to running growing businesses

(A) Business income is income generated from a certain business and refers to a social activity that is continuously and repeatedly conducted on an independent basis for profit-making purposes. For business income to be recognized as a business income, independence, profit-making, continuity, and repetition must be ensured. Article 19 of the Income Tax Act and Article 51 (8) of the Enforcement Decree of the same Act and Article 51 (8) of the same Act provide that "income accrued from the transfer of forest trees" shall be determined depending on whether the transfer was conducted as a part of the business. However, in calculating the amount of income of "business cutting down or transferring forest trees" in the calculation of the amount of income of "business cutting down or transferring forest trees", it shall be deemed that the income accrued from the transfer of forest land shall not be included in the amount of income

(B) Comprehensively taking account of the overall purport of the pleadings in each statement in Eul evidence Nos. 8 through 12 (including each number), the plaintiff can be acknowledged that the plaintiff either fells or transfers forest trees for the purpose of the business before transferring each of the forest land of this case or registered as a business operator under the Income Tax Act, run real estate lease business from May 20, 200 to October 25, 2002, and from May 26, 2003 to May 26, 2003, without any special agreement to separately treat the forest land of this case in the sales contract prepared between the plaintiff and the purchaser of each of the forest of this case.

According to the above facts, since the transfer of the forest trees of this case cannot be deemed to have the independence, profit-making, and continuous reflective nature of the "project", it cannot be deemed to be the business operator who runs the growing business. Thus, even if the plaintiff transferred the forest trees of this case along with the forest land, it cannot be deemed to be the business income. This is the same even if the forest trees of this case were afforested around 1962 and the plaintiff frequently visited the forest land of this case, such as his own assertion, and conducted forest management activities, such as planting, preventing blight and harmful insects, preventing fire, and preventing damage to the forest. Thus, this part of the plaintiff's assertion is without merit.

(2) Determination as to the principle of trust protection or self-detention

In the same case, the descriptions of Gap evidence Nos. 8, Gap evidence No. 9-1, and Eul evidence No. 9-2 are similar to or identical to this case, the defendant imposed the transfer value of forest trees as business income, and it is insufficient to recognize that the transfer value of forest trees as business income should be taxed as business income even in various established rules, requests for examination, and requests for adjudgment, it is insufficient to recognize that the transfer value of forest trees should be taxed as business income, and there is no other evidence to acknowledge it. Therefore, the plaintiff's assertion on this part is without merit.

(3) Sub-decisions

Therefore, the disposition rejecting the request for correction of this case is legal.

3.In conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.