Busan District Court 2013Guhap2519 (2014.09)

The taxpayer shall be responsible for proving the reduction or exemption of capital gains tax on self-Cultivating farmland.

Farmland for which no transfer income tax is levied refers to the land actually used for farming as of the date of transfer regardless of its land category in the public register, and even if it is not actually cultivated, the form of the land does not refer to the land in a state in which the shape can be used for the farming land, and the burden of proof as to such non-taxation

Busan High Court 2014Nu20322 Revocation of Disposition of Imposing capital gains tax

KimA

BB Director of the Tax Office

Busan District Court Decision 2013Guhap2519 Decided January 9, 2014

April 4, 2014

May 2, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The disposition of imposition by the Defendant against the Plaintiff on August 8, 2012 on the transfer income tax of the year 2011 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as stated in the part of the first instance judgment except for the addition of the following judgments. Thus, this Court’s reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Matters to be determined additionally by the second instance;

A. The plaintiff's assertion

원고는 당심에서, 이 사건 각 토지에 관한 매매계약을 체결하고 CCC에게 토지를 양도한 2010. 10. 8. 기준으로 이 사건 제2 토지에 폭 4m 도로가 개설된 사실이 없어 이 사건 각 토지는 농지에 해당하고, 원고가 제1심 법원의 제4차 변론기일에서 '농번기에 품삯을 주고 잠시 일손을 빌렸다'는 취지로 진술하였음에도 '제3자를 고용하여 일당을 주고 농사를 지었다'는 것으로 변론조서를 잘못 기재하였다고 주장한다.

B. Determination

Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 11133, Dec. 31, 201) and Article 66(5) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 23590, Feb. 2, 2012) provide that farmland subject to reduction or exemption from capital gains tax shall be based on farmland as of the date of transfer under Article 162 of the Enforcement Decree of the Income Tax Act: Provided, That where a purchaser changes its form and quality, starts construction, etc. in accordance with the terms and conditions of a sales contract before the transfer date, it shall be based on farmland as of the date of the sales contract if the purchaser changes the form and quality of each of the instant land, and even if the Plaintiff entered into a sales contract with the CCC on October 8, 2010 and transferred its possession, the determination shall be made based on the status of each of the instant farmland as of the date of transfer registration from the date of the sales contract to the date of the registration of ownership transfer.

Furthermore, barring any other special circumstances, where the contents of pleading are entered in the protocol, it shall have a strong probative value as to the fact that the contents thereof are true (see, e.g., Supreme Court Decision 2001Da6367, Apr. 13, 2001). The fourth protocol of the court of first instance prepared on December 12, 2013 by the court of first instance is clearly written by the plaintiff's statement that "the farmer of farmland was committed by the plaintiff with daily allowances to DD and EE," and there is no evidence to deem that the above statement was prepared differently from the facts.

Therefore, the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is groundless.

It is dismissed as per Disposition. It is so decided as per Disposition.