Seocho 209u3216 ( November 10, 2009)

Whether it is farmland actually used for cultivation at the time of transfer

Some of the lands were installed as a plastic house, which was used as a house, a dog, or a stock shed, and the remaining lands were used as a land annexed to a plastic house, and it was recognized that they were not used as farmland.

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 capital gains tax of KRW 88,01,970 for the Plaintiff on May 19, 2009 shall be revoked.

1. Details of the disposition;

A. On April 26, 1976, the Plaintiff acquired and owned AAA Dong 528-5, 462 square meters prior to the same 528-7, 25 square meters prior to the same 528-8, and 136 square meters prior to the same 528-8 square meters (hereinafter “instant land”). On March 17, 2008, the Plaintiff transferred the same 528-7, 25 square meters prior to the same 528-8, and 136 square meters prior to the same 528-8, to each A on May 27, 2008.

B. On May 31, 2008, the Plaintiff filed a preliminary return on the tax base of capital gains tax following the transfer of the instant land to the Defendant, and asserted that the instant land constitutes one of its own farmland for at least eight years, and filed an application for tax reduction or exemption of KRW 100 million based on Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter the same) and filed a voluntary return on capital gains tax amounting to KRW 17,892,220.

C. On the ground of the instant land at the time of transfer, the Defendant: (a) was installed with obstacles, such as houses, dogs, and pigs; and (b) the remainder of the land excluding this was not used as the land annexed to the said obstacles or used for farming; (c) thus, the instant land cannot be deemed farmland at the time of transfer; and (d) on May 19, 2009, deemed that the transfer of the instant land is not subject to tax reduction or exemption under the former Restriction of Special Taxation Act; and (b) rendered the instant disposition to correct and notify the Defendant of the transfer income tax of KRW 88,01,970,

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 1-1, Eul evidence 5-1-6, the purport of the whole pleadings

2. Whether the disposition is proper; and

A. The plaintiff's principal

The land of this case is registered as farmland on the registry. In fact, since the Plaintiff cultivated vegetables and flowers, etc. from around 1976 to the transfer date of this case (2008), the land of this case (or from among the land of this case) constitutes an exemption from capital gains tax under Article 69(1) of the former Restriction of Special Taxation Act as farmland for not less than eight years, and thus, it is unlawful for the Defendant’s disposition of this case.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) According to Article 69(1) of the former Restriction of Special Taxation Act, Article 69(1) and (4) and (5) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21307, Feb. 4, 2009); and Article 27 of the Enforcement Rule of the Restriction of Special Taxation Act, “self-Cultivating land subject to reduction or exemption of capital gains tax” refers to land actually used for farming as of the date of transfer regardless of its land category on the public register, and even if not actually cultivated, the form of land does not refer to land in which the shape of land can be used for farming (see Supreme Court Decision 88Nu6252, Feb. 14, 1989

(2) With respect to whether the land of this case (or, among the land of this case, 422 square meters) was actually used for farming at the time of transfer, there is insufficient evidence to acknowledge it by itself, and there is no other evidence to acknowledge it. Rather, according to each of the items of subparagraphs 4, 9-2, 12, 2, 3-2, and 3-1 through 3, 10, 11-1 through 4, 13-1, 13-1, 14-17, 14-17, 5-11, 5-11, as to whether the land of this case was actually used for farming at the time of transfer, it is recognized that a vinyl house was installed in part of the land of this case, and that the remainder of the land was used as farmland of this case, and that it was not used as farmland of this case.

(3) Therefore, the Defendant’s disposition of this case based on the premise that the instant land was not farmland at the time of transfer is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.