Early High Court Decision 2012J0656 ( October 27, 2012)

A disposition to exclude reduction or exemption is legitimate because it is difficult to recognize the previous land as a light;

In light of the fact that it is difficult for wage and salary income earners engaged in labor activities with high concentration during the business hours to deem that they actually cultivated at night or by using weekends, and that they do not submit all objective data related to the cultivation, etc., a disposition to exclude reduction or exemption is legitimate.

2012Guhap9810 Revocation of Disposition of Imposing capital gains tax

leAA

O Head of tax office

June 5, 2013

July 17, 2013

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2009 against the Plaintiff on November 1, 2010 is revoked (it appears that November 15, 2010 stated in the written complaint’s claim is a clerical error).

1. Details of the disposition;

가. 원고는 2004. 5. 20. OO시 처인구 OO동 000-2 전 1，088㎡(이하 '이 사건 토 지'라고 한다)를 000원에 취득한 다음， 2009. 11. 18. 000원에 매도하였다. 원고는 2010. 1. 31. 이 사건 토지의 매도가 대토를 위한 것이라는 이유로 양도소득세의 감면을 신청하였고， 2010. 2. 15. OO시 처인구 양지면 OO리 00-1 전 463㎡， 같은 리 00-1 전 284㎡(이하 통틀어 '이 사건 대토토지'라고 한다)를 000원에 취득하였다.

B. On November 1, 2010, the Defendant: (a) deemed that the Plaintiff did not own the instant land; and (b) accordingly, imposed KRW 000,000,000, capital gains tax on your own in 2009 (hereinafter “instant disposition”); (c) the Plaintiff dissatisfied with the instant disposition and filed an objection on February 14, 201; (d) received a decision of dismissal; and (e) filed an appeal with the Tax Tribunal on December 19, 201, but received a decision of dismissal on April 27, 2012.

[Grounds for Recognition] The non-contentious facts, Gap evidence 12, Eul evidence 1 and 3, and the whole purport of the pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

(i)the plaintiff

The instant disposition that was imposed without recognizing the Plaintiff’s self-recoveration on the ground that the Plaintiff had earned income from the Plaintiff, even though the Plaintiff cultivated the instant land.

ii)the Defendant;

The Plaintiff purchased the substitute land of this case without any need for cultivation as well as the land of this case, and did not meet the requirements for exemption from capital gains tax because it did not own the substitute land of this case, so the disposition of this case is lawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) From March 1, 1992 to the date, the Plaintiff worked at a graduate school of the PP University located in the O, and earned income in 2010 were 00 won, and the number of days that was retired before 17:139 days (10%) for the period from December 1, 2005 to August 5, 2009, and the number of days that was retired between 17:15 days (31%) and 18:346 days (26%) for the number of days that were retired after 18:33%) for the period from December 1, 2005 to 1,343.

2) On August 30, 2005, the Plaintiff joined the OF as a member, and on products purchased from OF from the Plaintiff, the purchase amount is 9,000 won in the year 2006, 358,201 won in the year 2008, 82,80 won in the year 2009.

3) The Plaintiff, while raising 3 chests from part of the instant land, submitted data that Kim K, a type of cryp Kim K, purchased breast feed.

4) Part of the confirmation document on the cultivation submitted by the Plaintiff is written out that the Plaintiff cultivated the instant land by November 201, 201 (Evidence No. 13, No. 13-4, and No. 13-8), and that it cultivated the instant land by 2011 (Evidence No. 13-2, and 3).

[Grounds for Recognition] 2, 5, 8, 9, 13, and 2

D. Determination

1) Article 70(1) of the Restriction of Special Taxation Act, Article 67(1) and (2), and Article 67(3)1 of the Enforcement Decree of the same Act provide that where a person who directly cultivated while residing in the former location of farmland for not less than three years has acquired other farmland and resided in a new location for not less than three years within one year from the date of transfer of the previous farmland, and where the area of the newly acquired farmland is not less than 1/2 of the area of the farmland to be transferred or the value thereof is not less than 1/3 of the value of the farmland to be transferred, the tax amount equivalent to 10/100 of the capital gains tax on the capital gains accruing from the transfer of farmland to the substitute land shall be reduced or exempted (see, e.g., Supreme Court Decision 94Nu996, Oct. 21, 1994).

2) According to the above facts, (1) even if there are considerable number of days of the Plaintiff’s holiday and early dropout, it is difficult to view that the wage and salary income earner engaged in work with high concentration during working hours has cultivated at night or has actually cultivated by using weekends; (2) the Plaintiff does not present objective materials to ascertain what the farming machine he owns for the purpose of cultivating the land in this case, and how the crops he has cultivated or disposed of through the farmland in this case, and (3) the Plaintiff’s purchase of the land in this case does not immediately mean the cultivation of the land in this case, and it is difficult to view that the Plaintiff did not purchase the goods in this case for the period of 205 years, and 207, and that it is necessary to determine that the Plaintiff did not directly purchase the goods in this case, and that the Plaintiff did not directly purchase the goods in this case, and that the Plaintiff did not directly purchase the goods in this case during the period of satisfling or importing the land in this case.

3. Conclusion

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