Examination transfer 2009-0288 ( December 31, 2009)

this disposition as non-business land by deeming it not to be self-owned shall be a party

It is not sufficient to recognize that the land was self-covered in consideration of the fact that there was a considerable income in the course of performing other activities for the farmland holding period.

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

Park ○

the director of the tax office of Western

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The imposition of capital gains tax of KRW 68,388,150 on July 11, 2008 by the defendant against the plaintiff shall be revoked.

1. Circumstances of the disposition;

A. On May 26, 1997, the Plaintiff: (a) transferred on November 21, 2007, he/she owned ○○○○○○○○○○-gun 219,694 square meters (hereinafter “instant land”); and (b) on January 25, 2008, upon reporting the transfer income tax on January 25, 2008, he/she applied for reduction of capital gains tax of KRW 15,224,410 as falling under farmland and falling under farmland under Article 69 of the Restriction of Special Taxation Act.

B. Accordingly, on July 11, 2008, the defendant did not recognize that the plaintiff was self-employed and applied heavy taxation rate to the land for non-business use, and imposed capital gains tax of KRW 68,388,150 on the plaintiff in 2007 (hereinafter the disposition of this case).

[Reasons for Recognition] Unsatisfy, Gap evidence 2, Eul evidence 1

2. The plaintiff's assertion

From 1988 to 20 years of transfer of the instant land, the Plaintiff continued to reside in ○○-gun, and owned farmland in addition to the instant land, and directly cultivated the said farmland.

Since agricultural income alone was unable to maintain its livelihood from 1990 to 2008, it was possible to operate his own business with agriculture concurrently, so it was possible to operate his own business. While it was deemed that he received wage and salary income from △ Construction Co., Ltd. from November 15, 2004 to January 5, 2008, he worked only at the time of contract, and the Plaintiff’s wife was the representative director, there was no problem in agriculture.

Even if it is not recognized that it has been less than 8 years under the Restriction of Special Taxation Act, it is illegal to apply the heavy taxation rate by deeming it as the non-business land.

3. Determination

In light of Article 69(1) of the Act on Special Cases concerning Taxation, and Article 66 of the Enforcement Decree of the same Act, in cases where there exists a fact that a resident living in a Si, Gun, or Gu where farmland has been located for at least eight years or a resident living in a Si, Gun, or Gu adjacent thereto has cultivated for at least eight years from the time of acquisition of such farmland until the time of transfer, the tax amount equivalent to 100/100 of the capital gains tax on the income accruing from the transfer of such land shall be reduced and exempted. The above requirements for reduction and exemption provisions shall be proved by the plaintiff.

On the other hand, the transfer income tax rate should be increased in case of transfer of non-business land under Article 104-3 of the Income Tax Act. Whether land falls under the non-business land falls under the requirements for taxation. However, since the income tax law widely prescribes the non-business land, the corresponding requirements for non-business land function as the grounds for reduction and exemption. In the case of farmland, the tax payer can easily prove this as the matters belonging to the taxpayer's territory, but it is difficult for the tax office to prove the fact, while it is difficult for the taxpayer to prove that the taxpayer is "non-business land" and the tax office adopts the method of return and payment of the transfer income tax, considering the fact that it is reasonable for the taxpayer to select the taxation requirements and submit the supporting documents, it is reasonable to view that the plaintiff's assertion of the non-business land under the Income Tax Act should prove it.

In addition, objective evidence should be used to prove whether the farmland ledger (Evidence A No. 4) written on January 6, 2003, which is written on public document and self-definite, has been written on January 6, 2003, and it is difficult to believe that the entry of the evidence No. 4 in the evidence No. 5 to prove that the Plaintiff used rice farming in the land of this case from around that time, but received rice direct payment subsidies for the land of this case from 2005 to 2007, which is the overlapping period, is ParkCC, and that it is not the Plaintiff (Evidence No. 9), the farmland status owned by the Plaintiff, the farmland status of the Plaintiff, and the fact that the Plaintiff acquired considerable income while performing other work for the same period, it is difficult to believe that the entry of evidence No. 5 to No. 10 in the evidence No. 4 is also an objective evidence to recognize that the Plaintiff used the land of this case in light of the above point.

Therefore, the disposition of this case does not contain any error of law as to the determination of facts as alleged by the plaintiff, so the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.