Cho-2016-west-3949 (2017.06)

Whether land constitutes land for non-business subject to exclusion from special deduction for long-term possession

The tax authority bears the burden of proving that the land for non-business subject to the exclusion of special long-term holding deduction is the land for non-business, and the land in this case is insufficient to be considered as farmland and there is no clear evidence

Article 104-3 of the Income Tax Act

2017Gudan62085 Revocation of Disposition of Imposing capital gains tax

○ ○

○ Head of tax office

April 25, 2018

June 4, 2018

1. The Defendant’s disposition imposing capital gains tax of KRW 000 for the year 2010 against the Plaintiff on April 0, 2016 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

As set forth in the text.

1. Details of the disposition;

(a) Acquisition and transfer;

1) On June 0, 198, the Plaintiff acquired 00 m20-1 00 m200 m2 (hereinafter “0-1 m20-1 m200 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2.

2) In around 1996, the land owned by the Plaintiff was divided into 00-1 00 square meters per Do-dong and 00-3 000 square meters per Do-dong and D-dong D-dong 00-3 000 square meters per Do-dong, AA-owned D-dong 00-2 00 square meters prior to the division (hereinafter “0-2 land prior to the division”), each of which was divided into 00-2 00 square meters per Do-dong and 000 square meters per 00 square meters prior to the division (hereinafter “instant division”).

3) On December 0, 1998, the Plaintiff acquired a gift from AAA even 00 square meters of Ddong 00-2,000 square meters (hereinafter referred to as the “acquisition of this case” in addition to the Plaintiff’s acquisition of 00-1 square meters of Ddong 00-1 from the land before subdivision on June 23, 198).

4) On December 0, 2010, the Plaintiff transferred the 00-1 m200 m2, and 000 m2,000 m2,000 m2,000 m2, to the EE Co., Ltd. (hereinafter “instant transfer”).

B. The disposition of this case and the procedure of the previous trial

1) On February 0, 201, the Plaintiff: (a) applied the special long-term holding deduction for the transfer of this case to the Defendant; and (b) paid KRW 000 to the Defendant.

2) However, on April 0, 2016, the Defendant: (a) deemed that all land subject to transfer falls under non-business land; and (b) determined and notified the Plaintiff of KRW 000 (including additional taxes) of the transfer income tax for the year 2010 (hereinafter referred to as “the first disposition”).

3) The Plaintiff was dissatisfied with the initial disposition on July 0, 2016, and filed an objection with the Defendant on July 0, 2016. The Defendant, on August 0, 2016, deemed that the portion of 00 square meters (which belongs to the Class-III general residential area under the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) among the 00-1 Do-dong Do-dong 000 square meters is not the land for non-business use. The Plaintiff applied the special deduction for long-term possession with respect to the said portion, applied the special deduction for long-term possession, reduced 00 won during the initial disposition, and dismissed the remainder of the objection (hereinafter “the instant disposition”). The Defendant still deemed that the Defendant constitutes the land for non-business use, including the land of 00 square meters among the Do-dong 00-1 Do-dong 000 square meters and the land of Do-dong 00-2 Do-2,000 square meters.”

4) On October 0, 2016, the Plaintiff asserted that the instant land was not a non-business land. However, the Tax Tribunal dismissed the request on March 0, 2017.

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

Unlike the land category in the public record, the current status of the instant land constitutes miscellaneous land. It is unlawful to exclude special deduction for long-term holding from the land for non-business use on the ground that the Defendant did not meet the requirements for re- village and self-reliance, or that the instant land is located in an urban area under the National Land Planning Act within the BB Metropolitan City.

2) The defendant's assertion

From the time of the instant transfer to the time of the instant transfer, the instant land constituted farmland as prescribed by Article 104-3(1)1 of the former Income Tax Act (amended by Act No. 10221, Mar. 31, 2010; hereinafter the same shall apply), and the Plaintiff re-established and did not own the instant land. The instant land was located in an urban area under the National Land Planning Act within BB Metropolitan City, and thus, the instant land constitutes all the requirements for non-business land under Article 104-3(1)1 (a) and (b) of the former Income Tax Act.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) The burden of proof

In general, the burden of proof on the facts that meet the requirements for reduction or exemption of capital gains tax lies on a taxpayer who asserts reduction or exemption of capital gains tax. However, Article 95 (2) of the former Income Tax Act provides that "any assets subject to special deduction for long-term holding (excluding unregistered transferred assets under Article 104 (3) and non-business land under Article 104-3) under Article 94 (1) 1, the holding period of which is at least three years." In light of the form and system of such legal provisions, it is reasonable to deem that the burden of proof on the fact that the transferred assets constitute non-business land subject to special deduction for long-term holding constitutes "non-business land subject to special deduction for long-term holding" exists on the tax authority that asserts such requirement (see, e.g., Supreme Court Decision 2010Du8423, Sept. 30, 2010).

2) Determination

First, according to the delegation of Article 104-3(1) of the former Income Tax Act, whether the instant land falls under farmland for the period prescribed by the items of subparagraph 1 of Article 168-6 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26067, Feb. 3, 2015; hereinafter the same) shall be deemed to have been

A) The facts that the land category of the instant case is “B” or “the answer” are as seen above. In addition, in full view of the entire purport of the argument as a result of the reply to the order to submit tax information to the head ofCC (hereinafter “the head ofCC”) on the BB Metropolitan City in this court, the head ofCC considered the current status of 00-2 00 square meters prior to Ddong as “B” and imposed property tax on the instant land. The head ofCC did not impose property tax on the portion of 00 square meters out of 00 square meters of Ddong Ddong 00-1 Dodong 400, and the head ofCC did not impose property tax on the Defendant for the period for which the extinctive prescription of the right to collect property tax has not been completed after having asked the Defendant about whether to impose property tax at the time of the instant disposition.

B) However, according to Article 104-3(1) and (3) of the former Income Tax Act, and Article 168-7 of the former Enforcement Decree of the Income Tax Act, the determination of land category related to whether a non-business land falls under the category of land should be based on the actual status, and only if the actual status is unclear, it can be based on the registration status on the public register. Article 168-8(1) of the former Enforcement Decree of the Income Tax Act defines the "farmland" under Article 104-3(1)1 of the former Enforcement Decree of the Income Tax Act as the rice field, paddy field, and orchard, which is the land actually

C) Comprehensively taking account of the overall purport of the pleadings, the following facts can be acknowledged on each video of Gap evidence Nos. 00 and Gap evidence Nos. 00 to 0.

① From among the 00-1 land owned by the Plaintiff, part of 00-3 00 square meters and the part of 00-2 00 square meters that was owned by AA after the instant partition, among the land owned by DD 00-3 00 square meters and 000 square meters that was owned by DD 00-4 00 square meters after the instant partition was incorporated into a project site of “○○-ro-○○ Complex Construction Project (hereinafter “Road Construction Project”) that was executed by B Metropolitan City around 1996, and was expropriated around that time.

② Under the road construction project, the eight-lane road was opened to and from the south of the instant land, and the delivery was formed by the sidewalk block (hereinafter referred to as the “Adjoining delivery”) between the road and the instant land.

③ The instant land is located on the slope located on the north side of the neighboring India (hereinafter referred to as “the slope of this case”). The instant slope of this case is about 30 to 40 degrees owing to the topographical low gradient, and the slope of this case is in the shape of the whole parallel parallel. There are a large number of trees in the slope of this case, and there are miscellaneous trees and trees.

④ On the part adjacent to the instant slope, there are about 0 meters high-level concrete retaining wall (hereinafter “instant concrete retaining wall”) constructed by cutting the slope vertically at a point at which approximately 0 meters lower from the north side of the instant slope is cut down to the north, depending on the slope of this case. From the land of this case, the shortest distance connecting the retaining wall of this case to the straight line is about 0 meters.

⑤ Under the instant concrete retaining wall, there is flatd land (hereinafter referred to as “defluenced land”) (the Defendant is located at the lower end at the lower end of the area of 00-1 000 square meters out of the DD 00-1 paddy field, which is recognized by the Defendant as not a non-business land in the process of filing an objection). The lower end of the instant slope, like the slope surface in the instant case, is maintaining a shape extending back into the west, and the lower end between the lower end and the delivery of the adjoining area is about 0-00 meters. The lower end of the lower end is used by the beneficiary company as the access road and the parking space.

(6) On the route connecting the lower end and the instant land to the shortest distance, the instant concrete retaining wall is located, and it is difficult to have access to the instant land by putting it at the lower end along the lower end at the lower end. In order to approach the instant land at ground level, the instant land ought to be set at the lower end, and as such, the instant slope ought to be cut to the instant land at the adjacent India along the instant slope surface, following the direction gate, which connects the lower end to the lower end of the lower end, and the lower part of the instant slope and the instant slope surface adjoining to the lower part.

D) Examining the following circumstances that can be seen by comprehensively considering the overall purport of arguments in the statements in Gap evidence Nos. 0, 0 and Eul evidence No. 0, the evidence submitted by the defendant alone is insufficient to deem that the land of this case constitutes farmland during the period prescribed in each item of subparagraph 1 of Article 168-6 of the former Enforcement Decree of the Income Tax Act. Rather, there is no clear evidence to acknowledge otherwise. Rather, the land category (de facto status) of the land of this case, which constitutes the criteria for determining whether the land constitutes non-business land, constitutes the land category of the land of this case, which is the criteria for determining whether it constitutes the land, falls under the land category ( de facto status) of this case, around the date of the construction of the 8th line road back or at any later late at the time (the slope of this case where the land of this case was located) from the north side of the concrete retaining wall at which the land of this case was cut off as the retaining wall of this case (the slope road of this case was located between delivery, return, and road adjacent to 8th line).

① In light of the location of the instant land, surrounding topography, environment, accessibility, etc., it seems practically difficult to cultivate the instant land.

② Considering the distance between the instant concrete retaining wall and the instant concrete retaining wall from the 8rd line road, the instant concrete retaining wall is located at the bottom of the slope surface of the instant slope, and the size of the retaining wall or the retaining wall installed at the bottom of the retaining wall, etc., there is considerable room to deem that the instant concrete retaining wall was constructed to prevent the collapse of the 8rd line road from going back to the earth and sand room of the instant slope surface to prevent the collapse (the Defendant asserted that the instant concrete retaining wall was constructed under the Plaintiff’s permission to use the lower bottom as the site for the parking lot, but did not submit objective evidence to support it until the closing of argument ( even even if the Plaintiff only owns part of the lower bottom). The trees planted on the instant slope appears to be used to prevent soil and sand loss.

③ Whether the Plaintiff, from the time of the acquisition of the instant land to the time of the implementation of the road construction project, re-established or re-developed the instant land, is not directly related to whether the current state of the instant land can be seen as farmland even after the construction of the instant 8th line road and the instant concrete retaining wall was constructed, and there is no evidence to deem that the Plaintiff illegally changed the form and quality of the instant land.

④ EEE, a real estate developer, acquired the instant land from the Plaintiff, appears to be a real estate developer.

3) Sub-decisions

The Defendant did not prove that the instant land constitutes farmland under Article 104-3(1) of the former Enforcement Decree of the Income Tax Act during the period prescribed by the items of subparagraph 1 of Article 168-6 of the former Enforcement Decree of the Income Tax Act pursuant to the delegation of Article 104-3(1) of the former Income Tax Act. On a different premise, the instant disposition that excluded the special deduction for long-term possession with respect to the transfer

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.