Suwon District Court-2015-Gu Partnership-62232 ( November 17, 2015)

The instant real estate cannot be deemed farmland at the time of transfer.

It is insufficient to recognize that farmland was farmland at the time of the date of transfer, and that it was farmland actually used for farming or temporarily in a state of temporary suspension.

Article 69 of the Restriction of Special Taxation Act (Abatement or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

2015Nu70821 Revocation of disposition of imposing capital gains tax

AA

BB Director of the Tax Office

June 22, 2016

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant's rejection disposition of correction of KRW 112,765,333 of the transfer income tax belonging to the year 2012 against the plaintiff on August 13, 2014 shall be revoked.

1. Quotation of judgment of the first instance;

The reasons why the court should explain the instant case are as follows: (a) the Plaintiff added some of the contents as set forth in Paragraph (2) below; and (b) the reasoning of the first instance judgment is the same as the part of the reasoning of the judgment except for the addition of the judgment as set forth in Paragraph (3) below; and (c) the meaning of the abbreviation used in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act (hereinafter the same is the same as the judgment of the

2. The addition;

○ On the 4th written judgment of the first instance court, the phrase “(3) through (5), and (8) No. 9” will be added to “B evidence No. 9(1) through (5)”.

○ The following is added to the judgment of the first instance court No. 20 on the 4th page.

According to the following circumstances, even if a golf course was not created on the instant real estate as of December 8, 2011 or at the time of the transfer of the instant real estate (as alleged by the Plaintiff, June 19, 2012), the Plaintiff asserts that the instant real estate was cultivated on December 8, 201 by the date the Plaintiff did not cultivate the instant real estate directly after 1972, based on the Plaintiff’s overall purport of Gap evidence 10-4, Eul evidence 9-1 through 5, and that, in light of the fact that the Plaintiff had been aware that the Plaintiff had not cultivated the instant real estate by December 8, 201, it is reasonable to deem that the Plaintiff had been a project implementer for the development of the instant real estate from 2008 to 201, and that the Plaintiff had already been removed from the project implementer for the development of the instant real estate and its affiliated building on the instant real estate from 2000 to 209 to 209.

3. Additional determination

A. The plaintiff's assertion

D Market imposed a regular property tax on the instant real estate in 2012 and imposed a separate taxation on other land. However, Article 102(1)2(a) of the Enforcement Decree of the Local Tax Act provides that “farmland actually used for farming as of the tax base date shall be considered as farmland to be subject to separate taxation.” D market conducts an investigation into the current status of the instant real estate and imposes a property tax, and as such, administrative act such as separate taxation is fair, so long as there exists a valid disposition of imposition of property tax, the disposition of this case based on the facts contrary to the premise of imposition of the said property tax is unlawful.

B. Determination

1) According to the statements in the evidence Nos. 3 and 12-1 and 2 of the evidence Nos. 3 and 12, D market impose property tax on the Plaintiff on August 4, 2014 and separate taxation on the instant real estate is recognized.

2) However, even if an administrative disposition is unlawful, it is the validity of an administrative act that does not deny its effect without permission on the ground of its defect, except in cases where there is a reason to deem it as null and void due to a significant and apparent defect (see, e.g., Supreme Court Decision 94Da28000, Nov. 11, 1994). This does not mean that another administrative agency or a third party cannot deny its existence and effect of an administrative disposition, and it cannot be determined differently from the facts premised on the administrative disposition. Thus, the fact that property tax in the D market is subject to separate taxation cannot be deemed as having been actually used for cultivation at the time of transfer of the instant real estate. In addition, there is no evidence to acknowledge that the DD market was actually being used for cultivation of the instant real estate around 2012.

3) Therefore, the Plaintiff’s above assertion on a different premise is without merit.

4. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.