Cho High Court Decision 2010Du0436 (No. 28, 2010)

In light of the fact that it was an ocean-going seafarer, it cannot be deemed that the land was self-lighted.

In light of the fact that the date of the ocean-going crew was at least one year from the several months to the date of the ocean-going crew, and that even after the date of the ocean-going crew was newly built for the performance test of the newly built ship, it cannot be deemed that the land was self-camped, and thus, the disposition that excluded the capital gains tax reduction or exemption and imposed tax is legitimate.

2010Guhap2884 Revocation of Disposition of Imposing capital gains tax

Park AA

○ Head of tax office

o April 1, 201

may 13, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 77,368,070 for the Plaintiff on October 9, 2009 shall be revoked.

1. Details of the disposition;

A. A. On July 16, 1986, the Plaintiff acquired and owned ○○○○○○○○○-gun, ○○○○○○○-gun, ○○○○○○-gun, 17-10 mal. 2,863m2 (the actual land category is prior to the actual land category), and was admitted to ○○ City Corporation around February 12, 2008, which is an implementer of ○○ Tourist Complex Project.

B. On April 12, 2008, the Plaintiff reported the acquisition value of the above land to the Defendant as KRW 14,103,501, and the transfer value as KRW 459,368,350, and the transfer value as KRW 459,368,350, and paid KRW 12,321,684 of the transfer income tax on the above land by voluntary declaration and payment of KRW 2,213,00 among the above land for at least eight years (hereinafter “the instant land”).

C. However, on October 9, 2009, the Defendant did not deem that the Plaintiff did not directly cultivate the instant land for eight years, and imposed KRW 77,368,070, which deducted the amount of voluntary payment after adding the additional tax, etc. (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Self-Governing Province refers to setting up a farmer's house under its own responsibility. ① The Plaintiff, in the instant land where the cultivation area was confirmed as a result of the cadastral surveying conducted by Korea Cadastral Survey, or in the Plaintiff's wife's wife's wife's wife's wife's wife's wife's wife's wife's wife's wife's wife's wife's 8 years or more under the Plaintiff's responsibility, the transfer income tax on the instant land is reduced or exempted pursuant to Article 69 (1) of the Restriction of Special Taxation Act, or (2) the Plaintiff, while making the Plaintiff's own land for three or more years, set up a 421 m

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

(1) With respect to reduction and exemption of capital gains tax on self-arable farmland, Article 69(1) of the Restriction of Special Taxation Act provides that the amount of capital gains tax on income accrued when a resident prescribed by the Presidential Decree residing in the location of the farmland directly cultivates for not less than eight years shall be reduced or exempted. Article 66(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21307, Feb. 4, 2009; hereinafter referred to as the "Enforcement Decree") provides that "resident residing in the location of farmland" of Article 69(1) of the former Enforcement Decree of the Restriction of Special Taxation Act refers to a resident who resides in a Si/Gun/Gu where farmland is located, a Si/Gun/Gu area adjacent to the said area, a Si/Gun/Gu area within 20 kilometers in straight line from the said farmland (hereinafter referred to as "area subject to reduction and exemption"), and Article 66(12) of the Enforcement Decree provides that "direct farming" means a resident who is engaged in cultivating or cultivating at least 2/1/1/2 of his own labor.

In addition, Article 70 (1) of the Restriction of Special Taxation Act provides that capital gains tax shall be reduced or exempted on any income accruing from substitute land for farmland which is cultivated by a resident prescribed by the Presidential Decree who resides in the location of farmland and falls under such cases as prescribed by the Presidential Decree due to the necessity for cultivation. Article 67 (1) of the Enforcement Decree provides that "resident prescribed by the Presidential Decree" under Article 70 (1) of the Act means a person who resides in the area subject to reduction or exemption prior to three years or longer, and Article 67 (2) of the Enforcement Decree provides that "direct farming" under Article 70 (1) of the Act is the same meaning as the case of self-farmland

In cases where a person wishes to have capital gains tax reduced or exempted on grounds of his/her own cultivation, the fact of the transferred land must be proven by the claimant actively, and the fact that the transferred land has been used as farmland is recognized, thereby not presumed to have been the transferor’s minor fact (see, e.g., Supreme Court Decisions 92Nu11893, Jul. 13, 1993; 94Nu96, Oct. 21, 1994).

(2) In full view of the above provisions and legal principles, in order for the Plaintiff to be subject to reduction or exemption of capital gains tax under the above Acts and subordinate statutes on the grounds of self-arable farmland or farmland substitute land, the Plaintiff had resided in the area subject to reduction or exemption for not less than eight years (self-arable farmland) or three years (farmland substitute land) and been engaged in cultivating crops or growing not less than half of crops or growing perennial plants at all times, and such facts must be proved by the Plaintiff himself.

In light of the formation form and content of evidence Nos. 6, 7-1 through 3 and Nos. 9, among the evidence that the plaintiff submitted as evidence that he cultivated the land of this case for not less than 8 years or 3 years, it cannot be deemed that the plaintiff himself has an independent value of evidence. In light of the content of evidence Nos. 6, 7-1 through 3 and Nos. 9, the part of the statement Nos. 9 is that the plaintiff directly cultivated the land of this case during the period during which the plaintiff did not reside in the area subject to reduction or exemption due to the employment of ocean-going crew members, etc. as seen below, it is difficult to believe that the part of the statement Nos. 3 through 5 is the plaintiff himself.

Furthermore, as seen above, at least 1 to 3, 12, 14, 15, 10, 11-1, 2, 13-1 to 18, 19-1 to 26, and 19-1 to 36, the Plaintiff’s or the Plaintiff’s wife KimB used land of this case at least two 8,00 m3,000,000 m2 to 1 to 3,000,000 m2 to 3,000,000,000 m2 to 1 to 4,000,000, and there was no difference between the Plaintiff and the Plaintiff’s m2 to 3,000,000,000 m2 to 1 to 4,000,000,000,000,000,000,000,00 out of the remaining land of this case, and the Plaintiff’s 1 to m2,0,00.

(3) Rather, in light of the above evidence (except for the portion not trusted) and evidence Nos. 21 and evidence Nos. 2, 4, 5, and Eul’s evidence Nos. 1 through 6 and the overall purport of oral pleadings, the plaintiff started to reside in the present place, which is the neighboring area of the land, and thereafter, he was able to 1 year or longer from the following several months until September 13, 2006, and the plaintiff did not appear to have been able to have been able to have been able to cultivate the land for about 12 years since the time when the land was expropriated. In light of the above fact that the plaintiff did not have been able to have been able to have been able to cultivate the above crops for about 10 days until February 12, 208, the period of 150 days after the plaintiff was able to have been able to have been able to cultivate the land for about 9 years, which was newly 10 years or more from the 3-year period of cultivation of the land.

(4) Therefore, the Plaintiff’s assertion cannot be deemed to have regravated the instant land for at least three years or eight years. Therefore, the Plaintiff’s assertion is without merit without further review.

3. Conclusion

Thus, the disposition of this case is legitimate, and the plaintiff's claim is dismissed as it is without merit.