Seoul High Court 2011Nu7788 ( October 19, 2011)

early 209 Heavy3022 (2010.03.09)

Since it is not deemed that the forestry was engaged in or the forest trees were subject to separate transactions, the entire amount constitutes capital gains.

If there was no growing activity to produce forest trees or no feasibility is recognized even if the forest trees were transferred along with the forest land, income generated from the transfer of the forest trees shall be subject to the transfer income tax, except in extenuating circumstances to deem that the forest trees were subject to transactions separate from the forest land.

2011Du277666 Revocation of Disposition of Imposing transfer income tax.

IsaA

Head of Sungnam Tax Office

Seoul High Court Decision 2011Nu7788 Decided October 19, 2011

September 13, 2013

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Article 19(1) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009; hereinafter "the Income Tax Act") provides that "income generated from the forestry" under subparagraph 1 by listing the income subject to business income. Meanwhile, the main sentence of Article 29 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034 of Feb. 18, 2010; hereinafter "Enforcement Decree of the Income Tax Act") delegated by Article 19(3) provides that "the scope of businesses under each subparagraph of Article 19 of the Act shall be based on the Korean Standard Industrial Classification unless otherwise provided in this Decree with respect to the scope of businesses under each subparagraph of Article 19 of the Act." The Korean Standard Industrial Classification provides that "the afforestation business (020) which is one of the three items of the detailed classification of forestry (020) shall be included in the forest in the calculation of the total amount of income generated from the forest, the forest shall not be included in the forest and the forest.

In light of the language, purport, structure, etc. of these regulations, in cases where forest trees are transferred along with forest land, it is reasonable to view that, in principle, income generated from the transfer of forest trees constitutes business income, only the remaining income, excluding that generated from the transfer of forest trees, is subject to the transfer income tax following the transfer of forest land. In such cases, whether income generated from the transfer of forest trees constitutes business income shall be determined in accordance with ordinary social norms by taking into account whether activities for growing for the production of forest are conducted for profit, the substance, scale, period, mode, etc. of such activities to the extent that business activities can be seen as business activities, and whether there is continuity and repetition of the forest trees, even if the forest trees were transferred along with forest land, unless there is any special circumstance to deem that the forest trees were traded separately from forest land, barring any special circumstance to deem that the forest trees were subject to the transfer income tax, and whether the forest trees and the forest land have been traded should be objectively determined by comprehensively taking into account the transaction purpose of the parties, details of the contract, evaluation of neighboring forest land, etc.

2. According to the reasoning and records of the judgment of the court below and the court of first instance, the plaintiff agreed to enter into the instant sales contract without distinguishing the purchase price of forest trees and forest land, and at that time, the sales contract prepared at that time does not include all the matters concerning the type, quantity, and relationship of rights of forest trees, except for the contents that "sale price" includes the sale price of forest trees, and only the forest land of this case is included in the sale price, and there is no evidence to prove that the plaintiff separately engaged in forestry, and there is no way to publicly announce the forest trees. Examining these facts in light of the aforementioned legal principles, the plaintiff does not transfer the forest trees on each land of this case in the course of running the forestry as a business, and it cannot be deemed that the forest trees were subject to transactions separate from forest land at the time of the instant sales contract, and therefore, the conclusion that the instant disposition was legitimate is not acceptable, and contrary to what is alleged in the grounds of appeal, there is no violation of law by misapprehending the legal principles on the method of calculating transfer income tax and transfer value.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.