Whether the land of this case constitutes land for non-business use

The evidence presented by the Plaintiff alone is insufficient to recognize that there is a serious and clear defect in the disposition of this case, and even if the land of this case is considered as a business land as alleged by the Plaintiff, the disposition of this case cannot be deemed as clear as its defect in appearance.

Article 104 of the Income Tax Act

Incheon District Court 2015Gudan1653 Nullification of Transfer Income Tax Imposition Disposition

AA

BB Director of the Tax Office

May 10, 2016

July 29, 2016

1. The plaintiff's claim is dismissed.

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

1. Details of the disposition;

A. On Nov. 19, 2001, the Plaintiff transferred 320,50,000,000 won to Kim In-si Kim on April 3, 2008, the Plaintiff reported and paid KRW 32,454,890,00 for capital gains tax for the year 2008, by applying the general tax rate to the Defendant on Apr. 3, 2008.

B. On June 1, 2009, the Defendant deemed that the land in this case was land for non-business use for which the Plaintiff did not directly cultivate during its possession period, and imposed a disposition of imposition of capital gains tax of KRW 61,014,202 for the year 2008 (hereinafter “instant disposition”) on the Plaintiff by applying 60% of capital gains tax heavy taxation rate to the Plaintiff.

C. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal, but was dismissed on May 19, 2010. On August 17, 2010, the Plaintiff filed a lawsuit seeking revocation of the instant disposition with the competent court, but was deemed to have been withdrawn on March 18, 201 (this Court Decision 2010Gudan1825, 201Guhap1058).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff suffered from excessive stress around 200 in 200 that the blood plate value was reduced, and did not completely recover from the operation of the Korea Electric Machinery Corporation until the health was recovered. The plaintiff purchased the land in this case and cultivated rice in accordance with the organic farming law, and sold rice on April 3, 2008. Thus, the disposition in this case on the premise that the land in this case constitutes non-business land shall be null and void because its defect is significant and obvious.

B. Determination

(1) In general, a taxation disposition imposed on a person who does not have any factual relation, such as the legal relation, income, or act, which is subject to taxation, shall be deemed to be significant and apparent. However, in a case where there are objective grounds to believe that it is subject to taxation with respect to certain legal relations or factual relations which are not subject to taxation, and where it can only be clarified whether it is subject to taxation or not, if it is possible to accurately investigate the factual relations, it cannot be deemed to be apparent even if the defect is serious, and thus, it cannot be deemed to be an unlawful taxation disposition that misleads the fact subject to taxation as to the requirement of taxation as a matter of course (see Supreme Court Decision 2001Du7268, Sept. 4, 2002). Moreover, in an administrative litigation seeking the invalidity of an administrative disposition, the Plaintiff is liable to assert and prove the grounds for invalidity in the administrative disposition (see Supreme Court Decision 2009Du3460, May 13, 2010).

(2) In light of the aforementioned legal principles, the following circumstances can be acknowledged by the health class, Eul evidence Nos. 2 through 5, and the purport of the entire pleadings, namely, ① the Plaintiff reported a large amount of wage and salary income each year during the period from January 1, 1995 to May 6, 201. From October 1, 2015, the electricity company engaged in the manufacturing business of industrial machinery until now, and from July 3, 2015 to July 3, 2015, each of the representative directors was registered in the manufacturing business of industrial machinery. ② From 2001 to 208, the sales of the Korea Electric Machinery Co., Ltd., Ltd., the Plaintiff registered as the representative director during the period of possession of the instant land, ③ The Plaintiff reported a large amount of wage and salary income each year during the period of possession of the instant land, ③ the Plaintiff had frequently entered the course of overseas and repeated entry into the Republic of Korea during the period of possession of the instant land, and there is no evidence showing that the Plaintiff’s land still completed the instant disposition.

Even if it is assumed that the land of this case constitutes land for business as alleged by the Plaintiff, in light of the overall circumstances as seen earlier, the defect in the disposition of this case cannot be seen as apparent. Ultimately, the disposition of this case cannot be deemed as null and void as a matter of course. Thus, the Plaintiff’s assertion does not seem to have any doubt or

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed, and it is so decided as per Disposition.