early 209 Heavy1949 (Law No. 96.30)

It is difficult to recognize that self-defense has been committed for not less than eight years.

It is legitimate to deny the application for reduction or exemption of capital gains tax for at least eight years on the land of partial transfer, but there is no evidence to prove that the person has cultivated ornamental trees and vegetables for at least eight years, and to impose capital gains tax on the land.

2010Nu34424 Revocation of disposition of imposing capital gains tax

Section AA

the director of the tax office of Western

Incheon District Court Decision 2009Gudan1782 Decided September 9, 2010

October 27, 2011

December 8, 2011

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of KRW 56,98,968 on February 23, 2009 against the Plaintiff was revoked (the first Plaintiff sought revocation of the disposition of imposition of KRW 170,982,190 on capital gains tax for the year 2007, but reduced the purport of the claim as above in the trial).

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On August 9, 1985, the Plaintiff acquired an OO-dong 000-0 1,444m2 (hereinafter “instant land”) from the Nam-gu Incheon Metropolitan City on August 9, 198, and transferred it on August 24, 2007, and applied for reduction or exemption of capital gains tax under Article 69 of the Restriction of Special Taxation Act, on October 24, 2007, on the ground that the instant land was self-alonged for not less than eight years.

B. Accordingly, on February 23, 2009, the Defendant deemed that the Plaintiff engaged in the fire equipment business from February 1, 1982 to December 28, 2006 and did not have any specific proof that the instant land was self-sufficient, and thus, did not constitute non-business land, and determined and notified the Plaintiff of KRW 170,982,190 of the transfer income tax reverted to year 2007 (hereinafter “the first disposition”).

C. On April 16, 2009, the Plaintiff appealed against the initial disposition and filed an appeal with the Tax Tribunal, but the Tax Tribunal dismissed the decision on June 30, 2009.

D. Accordingly, the Plaintiff filed the instant lawsuit with the court of first instance seeking revocation of the initial disposition, and the court of first instance rendered a judgment revoking the initial disposition on the ground that the Defendant’s deeming the instant land as a non-business land was illegal, even though it is insufficient to recognize that the Plaintiff was a self-employed land for not less than eight years.

E. Accordingly, the Defendant appealed, in accordance with the purport of the judgment of the first instance court, and the Defendant revoked the part of the first disposition that was deemed as land for non-business purposes and disposed of by applying the heavy taxation rate. On September 5, 201, the Plaintiff’s transfer income tax for the year 2007 was reduced to KRW 56,98,968 (the remainder of the original disposition as above is referred to as “instant disposition”).

[Reasons for Recognition] Unsatisfy, Eul evidence Nos. 1, 2, Eul evidence Nos. 15 and 16, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff resided in the vicinity of the instant land from the time of acquisition to the time of transfer, and directly cultivated the instant land, the instant disposition that denied the Plaintiff’s application for reduction and exemption for more than eight years is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Comprehensively taking account of the respective descriptions and images of Gap evidence Nos. 1 through 10 (including each number), the plaintiff may recognize the fact that the plaintiff cultivated ornamental water and hydrogens on the land of this case from around 2003 to around 2007. However, as to the fact that the plaintiff's self-defense of the land of this case for not less than eight years, the testimony of the witness KimA and originalB of the first instance trial as shown in this point is insufficient to recognize it without trust, and it is insufficient to recognize it only by the descriptions and images of evidence Nos. 1 to 20 (including each number), and there is no other evidence to acknowledge it. Accordingly, the plaintiff's assertion 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 unfair as it is so revoked (the part of the claim for revocation of the disposition on imposition in excess of KRW 56,98,968 of the transfer income tax belonging to the year 2007 of this case was withdrawn by the reduction of claim in the trial and the judgment of the court of first instance became null and void). It is so decided as per Disposition by the plaintiff.