Examination transfer 2009-0246 ( December 07, 2009)

Reduction of or exemption from capital gains tax for self-farmland for 8 years;

It is difficult to see that farmland has been depreciated for not less than eight years while residing in a location of farmland, such as engaging in construction business.

The contents of the decision shall be the same as attached.

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 KRW 5,814,380 against the Plaintiff on August 10, 2009 shall be revoked.

1. Details of the disposition;

A. On November 27, 2008, the Plaintiff reported the transfer income tax to the Defendant on May 31, 2009, applying the date of acquisition to December 9, 1993, the date of transfer as the date of November 27, 2008 and the date of transfer as the date of November 27, 2008, applying the reduced or exempted tax amount by the self-defense of eight years.

B. However, on August 10, 2009, the Defendant rendered a decision of correction of capital gains tax amounting to KRW 5,814,382 (hereinafter “instant disposition”) on the ground that the Plaintiff did not reside in the farmland of this case and there was no evidence to verify that the Plaintiff had cultivated the farmland of this case for not less than eight years.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 2 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the date of sale of the farmland in this case on the registry was February 2, 1980, it was decided by the plaintiff voluntarily, and it was transferred to 62-5 on December 16, 1978 on the plaintiff's resident registration, it was transferred to Gwangju, Seo-gu BB Dong 62-5 on December 16, 1978. However, this is a child's education problem, and the plaintiff moved to Gwangju only due to children's education problem, and the plaintiff resided in the farmland in this case and cultivated the farmland in this case for 23 years from the purchase of the farmland in this case from Gangwon around 1970 to 1993. Accordingly, the farmland in this case constitutes farmland cultivated directly by the plaintiff for 8 years or longer, and thus, the disposition in this case is unlawful.

B. Relevant statutes

The entries in the attached statutes are as follows.

(c) Fact of recognition;

① On December 30, 1964, Gangnam A acquired the farmland of this case and made farmland improvement on April 1, 1971, and on the payment of registration, the reason for registration on December 9, 1993 was the sale on February 2, 1980, and the registration of ownership transfer has been completed in the Plaintiff’s future.

② The first domicile of the Plaintiff on the certified copy and abstract of resident registration is CCC 146 in Yannam-gun, Chungcheongnam-gun, and after the transfer to 62-5 on December 16, 1978, the domicile of the Plaintiff was registered as Gwangju-gu.

[Recognition] Facts without dispute, Gap evidence 3-1, Gap evidence 3-2, Gap evidence 4, the purport of the whole pleadings

D. Determination

In order to have the capital gains tax reduced or exempted pursuant to Article 69 (1) of the former Restriction of Special Taxation Act (amended by Presidential Decree No. 9921, Jan. 1, 2010), the resident residing in the location of the farmland shall directly cultivate the farmland for at least eight years.

We examine whether the Plaintiff resided in the farmland of this case for not less than 8 years and directly cultivated the farmland of this case. The evidence presented as follows: Gap evidence 5-1, 2, and Gap evidence 6-1, and 12-2, which shows the Plaintiff's argument about the initial time of acquisition and period of self-development of the farmland of this case. All of them are written in the written statement of residents nearby the farmland of this case in which the principal contents are printed in advance, and only the signature, address, etc. of the person who made the statement are written in writing, and each of the written statements is insufficient to confirm objective facts. After moving into the Seo-gu BB Dong 62-5 on December 16, 1978 on the certified copy of the Plaintiff's resident registration, the Plaintiff's domicile was registered as the Seoul Special Metropolitan City day, and there is no objective evidence to acknowledge that the Plaintiff had resided in the farmland of this case for 193 years after acquiring the farmland of this case by around 1970, and there is no other evidence to acknowledge that the farmland of this case.

Rather, according to Article 162 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21565 of Oct. 1, 2009), where the date of liquidation is unclear, the date of acquisition, such as recorded in the register, shall be deemed to be the date of acquisition. In this case, the Plaintiff’s farmland acquisition on December 9, 1993, which is the date of registration on the registry of the farmland in this case, shall be deemed to be the date of acquisition of the farmland in this case. However, even according to the Plaintiff’s assertion, the Plaintiff was engaged in the construction business around 1993 and did not directly cultivate the farmland in this case from around 1993. Thus, the Plaintiff’s assertion that the farmland in this case is subject to reduction or exemption of capital gains tax on the premise that the Plaintiff directly cultivated the farmland in this case for eight years or longer while residing in

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.