Early High Court Decision 2012Nu20018 ( October 23, 2012)

Since there is no evidence of living together, the father or mother cannot be deemed to have cultivated farmland for not less than eight years even if he/she cultivated farmland.

Since there is no evidence to recognize that the father or mother was sharing the same livelihood or household, the father or mother cannot be deemed to have cultivated farmland for not less than eight years as he or she cultivated farmland.

Article 69 of the Restriction of Special Taxation Act

Article 66 of the Restriction of Special Taxation Act

2012Guhap1790 Revocation of Disposition of Imposing capital gains tax

The AAA

○ Head of tax office

June 18, 2013

July 16, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of capital gains tax of KRW 000 as of August 1, 201, and the imposition of penalty tax of KRW 000 as of May 6, 201, respectively, shall be revoked.

1. Details of the disposition;

A. On April 22, 2009, the Plaintiff sold to Nonparty B, Nonparty 5,593.1 square meters (hereinafter “the farmland of this case”) in 000 won in the price, the Plaintiff completed the registration of ownership transfer on May 11, 2009, to Nonparty 2.

B. On June 9, 2009, the Plaintiff sold 000 forest land 5,357 square meters (hereinafter “the forest of this case”) in terms of the price to Nonparty 1, 200 to Nonparty 1, 209, and completed the registration of ownership transfer in the direction D on July 21, 2009.

C. On May 2010, the Plaintiff, and the instant farmland, filed a final return on capital gains tax on the following grounds: (a) the Plaintiff fell under self-farmland for at least eight years as prescribed by Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 10406, Dec. 27, 2010; hereinafter the same shall apply); (b) the reason for income tax reduction or exemption exists; and (c) the acquisition value of the instant forest exceeds the transfer value.

D. On August 1, 2011, the Defendant, and the instant farmland did not meet the self-sufficiency requirements for not less than eight years as stipulated in Article 69(1) of the former Restriction of Special Taxation Act, and on the ground that the accurate acquisition price for the instant forest does not exist as to the instant forest, deeming the value of KRW 000 converted by the standard market price as acquisition value, and imposed and notified the Plaintiff of KRW 000 and additional tax KRW 0000,000, total of KRW 2000 and additional tax for the transfer income tax for 2009.

E. On October 31, 201, the Plaintiff appealed and filed a request for review with the Board of Audit and Inspection on October 31, 201, but on February 23, 2012

was dismissed.

F. On May 6, 2013, the Defendant, at the time of the instant lawsuit pending, revoked ex officio a disposition imposing penalty tax of KRW 000 on the ground that the type of the said tax and the grounds for calculation of the tax amount were not clearly stated at the time of the instant disposition on the grounds that the said additional tax was imposed, and on May 6, 2013, the Defendant again imposed and notified the Plaintiff of the disposition imposing penalty tax of KRW 000 on the Plaintiff (hereinafter referred to as “instant disposition” in total, of the disposition on August 1, 201 and the imposition of penalty tax as of May 6, 2013).

[Grounds for Recognition] The whole purport of the arguments and arguments, as follows: non-strifed facts, Gap evidence 4-2, Gap evidence 5-1, Eul evidence 6-4, Eul evidence 6-8, Eul evidence 7-3, Eul evidence 11, Eul evidence 1-3, and Eul evidence 5-1, and Eul evidence 5-1.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) On November 30, 1969, the Plaintiff purchased the farmland of this case from OO, and from that time, OO, the Plaintiff’s father, died on October 29, 2002, and thereafter, OO, the Plaintiff’s mother, OO, was the farmer of the farmland of this case until May 2009, when selling the farmland of this case after OO died on October 29, 2002. Accordingly, since the Plaintiff was self-employed in the farmland of this case for not less than eight years, the provision on capital gains tax reduction and exemption was not applied on other premise, and the Defendant was unlawful of the disposition of this case.

2) On January 20, 1997, the Plaintiff purchased 000 won for the instant forest, and completed the registration of ownership transfer under the name of MO, and determined the purchase price at KRW 000 upon purchasing the instant forest from MO on November 1, 1999. Therefore, since the acquisition price of the instant forest is 00 won and the transfer price is 000 won, there is no transfer margin, and even if the Plaintiff deducted 000 won from the initial acquisition price, there is no transfer acquisition tax to be borne by the Plaintiff with respect to the instant forest. Nevertheless, the Defendant did not accept any of the acquisition price (00 won or KRW 000) claimed by the Plaintiff, and imposed the transfer income tax on the acquisition price based on the standard market price, and thus, was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) First, we examine the farmland of this case.

According to Article 6(1) of the former Restriction of Special Taxation Act and Article 69(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 23590, Feb. 2, 2012), Article 6(1) and (4) and Article 13, for the purpose of being eligible for reduction of or exemption from capital gains tax by his father, the Plaintiff’s 1 and 7 years old who reside in the Si/Gun/Gu area (including the adjacent Si/Gun/Gu area and the area within 20 km in a straight line from the farmland) where the farmland is located shall be cultivated or cultivated with 1/2 or more of its own labor, and the Plaintiff’s allegation that the farmland was 9 years old after 7 years old is difficult to view that the Plaintiff had been 9 years old since 7 years old since 190 and 9 years old since 190, and that it was difficult to view that the Plaintiff’s new farmland was 5 years old or 7 years old since 197, as otherwise alleged.

2) We examine the forest of this case.

In full view of the statements in Gap evidence 7-2, 3, 4, and 8, and 10, and the testimony of the TracO on January 20, 1997, the sales contract made with respect to the forest of this case was written by the seller and the purchaser as the MacO and MacO of the plaintiff's father, and ② the fact that the MacPP was completed on March 24, 1997 with respect to the forest of this case on March 11, 1997, and ③ the plaintiff purchased the forest of this case from MacO on November 1, 199, and entered 00 won as the purchase price in the sales contract, but the plaintiff actually paid to MacO as the purchase price for the forest of this case, and there is no reason to acknowledge that the acquisition price of the forest of this case was 00 won or less, and there is no reason to recognize that the plaintiff did not have any special deduction for the forest of this case as the acquisition price.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.