Cho High Court Decision 201Do1026 ( October 25, 2011)

The disposition that excludes capital gains from reduction or exemption is legitimate because it fails to meet the requirements for reduction or exemption.

Since there is no evidence to acknowledge that a person has resided in an area within the location of farmland or a Si/Gun/Gu adjacent thereto for at least eight years, and there is no fact that he/she has resided in another city from the date of acquisition to the time of transfer of farmland, it is confirmed that he/she has resided in the other city, the reduction or exemption of the tax for

Article 69 of the Restriction of Special Taxation Act

Article 66 of the Enforcement Decree of the Restriction of Special Taxation

2011Gudan17847 Revocation of Disposition of Imposing capital gains tax

XX

Director of the District Office

December 20, 2011

January 17, 2012

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 7,473,540 for the Plaintiff on August 20, 2010 is revoked.

1. Details of the disposition;

A. On Aug. 26, 1996, the Plaintiff acquired and possessed 635 square meters in Pyeongtaek-si, Chungcheongbuk-do (hereinafter “instant farmland”) and transferred the instant farmland to the Korea Land Corporation on Feb. 27, 2006, and made a preliminary return of tax base to reduce capital gains tax for at least eight years on March 20, 2006.

B. Accordingly, on August 20, 2010, the Defendant decided and notified the Plaintiff of the transfer income tax of KRW 7,473,540 for the year 2006 (hereinafter “instant disposition”) by deeming that the Plaintiff did not reside at the seat of the farmland of this case for not less than eight years and did not reduce or exempt the tax amount for his own farmland.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2 (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff directly cultivated the farmland of this case by residing in the seat of the farmland of this case for not less than eight years and receiving subsidies for rice, etc., and meeting the requirements for the reduction and exemption of capital gains tax. Therefore, even if the Plaintiff meets the requirements for reduction and exemption of capital gains tax, the instant disposition otherwise reported is unlawful.

B. Determination

Under Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 921 of Jan. 1, 2010) and Article 66(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19463 of Apr. 28, 2006), the transferor (resident) shall reside in the Si/Gun/Gu or the area in the Si/Gun/Gu where the farmland is located and directly cultivate the relevant land for not less than eight years from the time of acquisition until the time of transfer.

In this case, first of all, there is no evidence to acknowledge that the plaintiff had resided in the area within the Si, Gun, Gu, or Si/Gun/Gu adjacent to the Si/Gun/Gu where the farmland of this case was located for more than eight years. Rather, according to the above evidence and evidence No. 4, the plaintiff can only recognize that the plaintiff had resided in the area of this case from May 29, 1989, before acquiring the farmland of this case until the transfer of the farmland of this case, the plaintiff can only be recognized as having resided in the 000-00, Gangseo-gu Seoul Metropolitan Government OOdong from May 29, 1989 to the transfer of the farmland of this case. Thus, the plaintiff'

C. Sub-committee

Therefore, since the Plaintiff cannot be deemed to meet the requirements for re- village reduction and exemption of capital gains tax, the instant disposition that the Plaintiff reported as such is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.