A. The burden of proving the existence of the transferred farmland (=the transferor)

B. Whether Article 170(1) proviso and Article 115(1)1(c) of the Enforcement Decree of the Income Tax Act and Article 56-5(5) of the Enforcement Decree of the same Act are effective (affirmative)

C. Whether Article 72(3)4 of the Regulations on the Management of Property Tax Investigation (amended by the National Tax Service Directive No. 980, Jan. 26, 1987) is effective (affirmative)

(d) The case holding that real estate transactions are speculative transactions falling under Article 72 (3) 4 of the Regulations on the Investigation of Property Tax and Handling;

A. Since the fact that the transferred real estate has been cultivated as farmland is recognized, the transferor is not presumed to have done so, and thus, the transferor should prove that the transferred land has been self-covered as farmland.

B. The proviso of Article 170(1) of the Enforcement Decree of the Income Tax Act and Article 115(1)1(c) of the Enforcement Decree of the same Act and Article 56-5(5) of the Enforcement Rule of the same Act are effective provisions.

C. Article 72(3)4 of the Regulations on the Management of Property Tax Investigation (National Tax Service Directive No. 916) before amendment by the National Tax Service Directive No. 980 of January 26, 1987 is effective.

D. The case holding that the real estate transaction in this case constitutes an speculation transaction falling under Article 72 (3) 4 of the Regulations on the Management of Property Tax Investigation in light of the following: (a) the plaintiffs engaged in a transaction by acquiring and resale the real estate in this case without any obvious reason or need to acquire the real estate in this case; (b) the current status, location, holding period, and the scale and method of the transaction of the real estate in this case, including the transaction of the real estate in this case since 1979; and (c) the frequency of the transaction so returned

A. Subparagraph 6 (j) of Article 5 of the Income Tax Act, Article 14 (7) of the Enforcement Decree of the same Act, Article 26 of the Administrative Litigation Act (Article 38 and Article 59 of the Constitution). Article 60 of the Income Tax Act, Article 115 (1) 1 (c) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989), the proviso to Article 170 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989), Article 56-5 (5) (c) of the Enforcement Decree of the Income Tax Act, Articles 23 and 45 (1) of the Income Tax Act, Article 170 (4) 2 of the former Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989), Article 170 (2) of the former Income Tax Act (amended by the National Tax Service Directive No. 1982)

A. Supreme Court Decision 85Nu722 delivered on October 14, 1986 (Gong1986, 3050), 87Nu402 delivered on October 13, 1987 (Gong1987, 1730), 90Nu639 delivered on May 22, 1990 (Gong1990, 1393), 90Nu3515 delivered on July 24, 1990 (Gong190, 1819), 90Nu511 delivered on November 13, 1990 (Gong191, 125), 90Nu511 delivered on December 7, 199, 191 (Gong191, 502), 191, 502) 190Nu63979 delivered on August 13, 195 (Gong199, 197).

Kim Jong-si et al., Counsel for the defendant-appellant-appellee and one other

Head of Eastern Tax Office

Busan High Court Decision 88Gu1974 delivered on June 20, 1990

All appeals are dismissed.

The costs of appeal shall be assessed against each party.

1. Determination as to the first ground for appeal by the Plaintiff Kim Jong-Un, Counsel for the supplementary ground for appeal by the Plaintiff Kim Jong-Un (the grounds for appeal stated in the supplementary ground for appeal submitted by the Plaintiff Lee Jong-woo, Counsel for the supplementary appeal after the expiration of the period for submitting the appellate brief are determined to the extent of supplement

The court below acknowledged that the above plaintiff acquired and owned real estate listed in subparagraph 1 (j) of attached Table 1 of the judgment of the court below on November 17, 1986 and transferred it on August 18, 1987. The court below acknowledged that the above plaintiff acquired the above real estate for the purpose of cultivating seedlings and vegetables, etc., and found it inappropriate for the plaintiff to cultivate fruit seedlings and vegetables, etc. due to the subdivision of underground water not towed by cultivating seedlings, etc., and purchased other farmland with the proceeds of the transfer of the above real estate and cultivated crops at other places. Thus, even if the above real estate was generated from the transfer of the above real estate, the above plaintiff's assertion that "income generated from substitute land for farmland" cannot be imposed capital gains tax because it constitutes "income generated from substitute land for farmland" under subparagraph 6 (j) of Article 5 of the Income Tax Act and Article 14 (7) of the Enforcement Decree of the same Act, the above plaintiff's assertion that the above plaintiff's above real estate cannot be viewed as farmland in light of the relevant laws and regulations and regulations without any reasonable ground to acknowledge the remaining real estate.

The Supreme Court precedents pointing out by the party members are those pertaining to the case under the premise that the transferor of the land has regarded the land as farmland, and therefore, it is not appropriate to invoke the case in this case.

In addition, even if the above real estate has been cultivated as farmland, it is not presumed that the above plaintiff has been cultivated as farmland, and the fact that the transferred land has been cultivated as farmland has to be proved by the transferor who asserts such fact (see, e.g., Supreme Court Decision 85Nu722, Oct. 14, 1986; Supreme Court Decision 87Nu402, Oct. 13, 1987; Supreme Court Decision 90Nu639, May 22, 1990); therefore, there is no error of law by misapprehending the legal principles on burden of proof, such as the theory of lawsuit, in the judgment of the court below.

Ultimately, we cannot accept the argument.

2. Determination on the ground of appeal No. 2

Article 170 (1) (proviso) and Article 115 (1) 1 (c) of the Enforcement Decree of the Income Tax Act and Article 56-5 (5) of the Enforcement Decree of the same Act, etc. of the same Act prior to the amendment by the Presidential Decree No. 12767 of Aug. 1, 1989, are effective provisions, and Article 56-5 (5) of the same Enforcement Rule of the same Act, etc. of this party members (Supreme Court Decision 85Nu281 Decided July 8, 1986; Supreme Court Decision 86Nu596 Decided December 23, 1986; Supreme Court Decision 85Nu923 Decided February 10, 198; Supreme Court Decision 87Nu282 Decided Jan. 19, 198; Supreme Court Decision 87Nu188 Decided Feb. 9, 198; 90Nu3515 Decided July 24, 1990).

3. Determination on the ground of appeal No. 3

Article 72(3)4 of the Regulations on the Management of Property Tax Investigation (amended by the National Tax Service Directive No. 980 of Jan. 26, 1987) is effective regulations (see Supreme Court Decision 90Nu6705, Jan. 25, 1991). Relevant evidence and records show that the plaintiffs engaged in a transaction to acquire and resell a lot of real estate at issue in this case without any obvious reason or need to acquire them as such, and that the real estate is the current status, location, period, and method of possession. And in light of the number of transactions in this case after 1979, the acquisition of 20 times including the real estate transaction in this case and 30 times of transfer and 30 times of transfer, it can be recognized that transactions in real estate as part of an objective speculative act, and therefore, the judgment of the court below is justified in the misapprehension of the principle of no taxation without the law.

4. Determination on the grounds of appeal by Defendant Litigation Performers

In rendering the instant taxation, the court below acknowledged the fact that the Defendant calculated capital gains pursuant to Article 72 (3) 8 of the Regulations on the Management of Property Tax Investigations amended by National Tax Service Directive No. 980 on January 26, 1987 with respect to the transaction of real estate as stated in Articles 1 (1), (8), and (10) of the attached Table 1 of the judgment below, and determined that the above provision is invalid in violation of the principle of no taxation without law. According to relevant evidence and records, the Defendant did not pay taxes on the ground of Article 72 (3) 7 of the above Regulation on the Management of Property Tax Investigations, and it is clear that the court below did not assert that the above transaction of real estate constitutes an speculation under the above provision. Thus, the court below did not examine and determine whether each real estate transaction falls under the above provision, and there is no error in the misapprehension or application of laws that did not properly examine as the theory of lawsuit.

5. Therefore, all appeals against the plaintiffs are dismissed, and the costs of appeal against the plaintiffs are assessed against the plaintiffs Kim Jong-Un and the defendant respectively. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Jae-ho (Presiding Justice)