Examination-transfer-2015-091 (Law No. 23, 2015.09)

The owner who bears the burden of proving that he/she has cultivated an application for reduction or exemption by eight years or more and has the presumption of registration.

The burden of proving the direct cultivation of the transferred land as a requirement for reduction or exemption of capital gains tax on self-arable land lies in a taxpayer who asserts reduction or exemption of capital gains tax, and asserts that the form or process of an act in the cause of registration is somewhat different from that of a taxpayer who asserts reduction or exemption of capital gains tax, and it cannot be said that the burden of presumption of its registration is broken

Article 162 of the Transfer Income Tax Act: The time of transfer or acquisition

2015Gudan63411 Revocation of Disposition of Imposing capital gains tax

AA

BB Director of the Tax Office

April 12, 2016

May 13, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 00,000,000 on the net AB of December 1, 2014 is revoked.

1. Details of the disposition;

A. In accordance with Article 126(4) of the Agricultural Community Modernization Promotion Act, the registration of ownership transfer was completed on December 9, 1976, and on November 5, 2013, the registration of ownership transfer was completed on the ground of the Plaintiff’s trading on January 20, 1976, on the land of TTPP 161-1,000 square meters prior to SSri 161-1,000 square meters (hereinafter “instant land”).

B. AB filed a return on capital gains tax of KRW 200,000,000, on the ground that the land of this case was self-faced for more than eight years.

C. The Defendant: (a) deemed that AB could not be deemed to have cultivated the instant land for at least eight years; and (b) imposed capital gains tax of KRW 000,000,000 on AB on December 1, 2014 (hereinafter the instant disposition).

D. AB died on June 6, 2015, and the Plaintiff is his child.

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

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Residential and self-defense allegation for at least eight years

AB resided in the vicinity of the instant land, not on December 9, 1976, but on March 3, 1965, the date of acquiring the ownership of the instant land, and thereafter, AB registered its resident in Seoul for the purpose of educating its children in Seoul, but on April 13, 1979, continued to reside in the vicinity of the instant land until the director was 00,000,000,000,000,000,000,000. Therefore, the instant disposition that excluded capital gains tax reduction or exemption was unlawful on the ground that AB did not own the instant land for at least eight years.

2) Claim that the land owner is not the owner of the instant land

DD owned the instant land and died on March 3, 1965, and upon consultation among co-inheritors, AAB’s wife (one of co-inheritors) succeeded to the instant land. Accordingly, since the instant land owner is not AB but DA, it is unlawful to impose capital gains tax on AB.

B. As to the allegation of residence and self-reliance for at least eight years of AB

1) Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015) provides that the tax amount equivalent to 100/100 of capital gains tax on income accrued from the transfer of land prescribed by Presidential Decree among the land directly cultivated by a resident prescribed by Presidential Decree who resides in the seat of farmland for at least eight years shall be reduced or exempted. Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 25211, Feb. 21, 2014) provides that “Direct cultivation” means that a resident is engaged in the cultivation of crops or perennial plants on his/her own land, or cultivates or cultivates them with his/her own labor not less than half of farming works. Meanwhile, the burden of proving the fact that he/she directly cultivated the transferred land as a requirement for reduction or exemption of capital gains tax on his/her own farmland is imposed on a person liable to pay capital gains tax (see, e.g., Supreme Court Decision 90Nu.

2) As evidence consistent with the above argument, the Plaintiff submitted evidence Nos. 1, 2, and 11 through 17 of the evidence No. 8, but in full view of the following circumstances acknowledged by Gap evidence No. 2, Eul evidence No. 2, and the purport of the entire pleadings and arguments, it is insufficient to acknowledge that the above evidence offered by the Plaintiff was self-fashed for at least eight years for farmland of this case, and there is no other evidence to prove otherwise.

The details of the change in the resident registration of ○ AB are as follows. Since December 9, 1976, the ownership transfer registration for the land of this case has been made in the name of AB, it is limited to two years and five months (the period from December 9, 1976 to April 12, 1979 and the period from February 1, 1983) and it is limited to eight years even after January 20, 1971.

List of votes

There is no objective evidence on the fact that ○ AB has replaced the instant land.

C. As to the assertion that the owner of the instant land is not AB but DA

1) The registration of real estate is valid even though the current state of true rights is not reflected in the process or form that led to the disclosure. Thus, when a person who registered his/her real estate acquires real estate from the former owner for another reason without following the grounds for registration entered in the register, he/she asserts that the form or process of an act for registration is somewhat different from that of the former owner, and it cannot be said that the burden of presumption of registration is broken. Thus, even in such a case, the claimant’s registration of ownership transfer is made against the intent of the former registered titleholder and thus invalid should be asserted and proved (see, e.g., Supreme Court Decision 9Da65462, Mar. 10, 200).

2) The fact that the transfer registration of ownership was completed on December 9, 1976 due to the sale on January 20, 1971 in subrogation of PP-gun pursuant to Article 126(4) of the Agricultural Community Modernization Promotion Act with respect to the land of this case is presumed to have been the owner of the land of this case.

3) Comprehensively taking account of the overall purport of the arguments in Gap evidence 3 and evidence 18-2, DDAB's acquisition of ownership of the land in this case on January 14, 1954 as the wife of the Republic of Korea, but died on March 3, 1965, but comprehensively taking account of the following circumstances acknowledged by the entire purport of the pleading in Eul evidence 4, it is insufficient to acknowledge the fact that AB was not the owner of the land in this case, and there is no other evidence to prove otherwise.

Since the subrogation registration under Article 126 (4) of the Agricultural Community Modernization Promotion Act is made after the relevant administrative agency confirms the fact about the actual ownership, it seems that the reason for the acquisition of the instant real estate by AAB at the time of the subrogation registration was confirmed on January 20, 1971. It appears that AB actually purchased the instant land on the above date, and the EE, WW, and KK's fact-finding confirmation (not written as to whom evidence Nos. 4 and whom purchase was made) was submitted.

○AB did not raise any objection to the transfer of the instant land once until the transfer of the instant land, after having received the registration of transfer of ownership with respect to the instant land, and as seen earlier, he reported the transfer income tax on his own.

3. Conclusion

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