Cho High Court Decision 201Do3095 ( December 16, 2011)

It is difficult to recognize that residence and self-defense have been commenced at the location of the substitute land within one year from the date of transfer of the previous land.

In light of the fact that the tax authority was registered as a substitute land located on the resident registration card but was not residing on the resident registration card at the time of the on-site verification by the tax authority, and that the land which was not farming for several years at the time of the on-site verification is confirmed as a miscellaneous land, it is difficult to recognize that it is difficult to be recognized as having been residing on the substitute

2012Gudan7106 Revocation of Disposition of Imposing capital gains tax

XX Kim

The Director of Gangnam District Office

November 30, 2012

December 14, 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 000 against the Plaintiff on June 1, 2011 is revoked.

1. Details of the disposition;

A. On December 16, 2004, the Plaintiff acquired through sale on April 3, 1980, transferred 000 m227 m227 m2 (hereinafter “previous land”) to the Korea Land Corporation on the ground of expropriation of 000 m20 m3,227 m2 (hereinafter “previous land”). On April 21, 2005, the Plaintiff acquired m200 m3,441 m3,000 m3,000 m3,000 m3,000 m3,000 m3,000 m3,000 m3,000 m3,000 m2,000 m2,000.

B. As a result of the comprehensive audit on August 2010, the Commissioner of the National Tax Service, on January 25, 2006, pointed out that the Plaintiff did not directly cultivate the pertinent land at the time of the on-site verification, and thus, it should be presumed that the Plaintiff failed to meet the requirements for non-taxation by farmland substitute land. Accordingly, on June 1, 2011, the Defendant issued the instant disposition to rectify and notify the Plaintiff of KRW 00 of the transfer income tax reverted to the year 2004.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3 through 5, Eul evidence 1 (including above numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff satisfied the requirements of non-taxation by substitute farmland on the transfer of previous land, namely, where a person who resided in the previous location of farmland for not less than three years and cultivated while residing in a new location of farmland for not less than three years within one year from the date of transfer of previous farmland," and thus, the instant disposition by the Defendant on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

According to Article 89 subparag. 4 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005) and Article 153(2) subparag. 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705 of Feb. 19, 2005), where a person acquired other farmland within one year from the date of transfer of the previous farmland and cultivated it for three or more years, income tax on the transfer of the previous farmland shall not be imposed. The purport of such provision is to protect a farmer through free permission and guarantee of free substitution of farmland, or develop and encourage agriculture. Thus, the acquisition and sale of farmland for three or more years at the seat of a new farmland should be limited to cases where the farmland owned by a self-employed farmer is for large-scale cultivation, barring any special circumstance. Thus, it is reasonable to deem that a person residing and his own cultivation should begin at least for one year from the date of transfer of the previous farmland within one year (see Supreme Court Decision 2005Du54945, Feb. 29, 20005).

In the case of this case, considering the following circumstances, where there is no dispute between the parties, or where the evidence submitted by the plaintiff, such as witness KimA and KimB testimony, is insufficient to recognize that the plaintiff continued to reside and reside in the location of the previous land until December 16, 2005, and there is no other evidence to recognize otherwise, the plaintiff's assertion that the plaintiff satisfied the non-taxation requirements of farmland substitute land is legitimate, and the defendant's disposition of this case is legitimate.

① On October 5, 2005, the Plaintiff resided in Seocho-gu Seoul Metropolitan Government 000-999, the resident registration card was registered as having been transferred to 000,000,000,000 from Gangseo-gu, Chungcheongnam-gu, Seoul. On September 11, 2007. On May 25, 2009, the Plaintiff was registered as having been transferred to 000,000,000 from Gangnam-gu, Seoul 00-4, 3-000.

② However, at the time of the local confirmation on January 25, 2006, the Plaintiff was confirmed not to have resided in the above OP No. 000 dong 0000 dong 0000, which is the domicile of the resident registration card. At the time of the local confirmation again on November 13, 2007, the Plaintiff did not reside in the OP as 00 dong 000 dong 000 dong dong 000, which is the resident registration card, and the Plaintiff did not reside in the above 00 dong 000 dong 000.

③ In the instant pleadings, the Defendant asserted that the Plaintiff did not reside in the said OF 00 dong 00000 around January 25, 2006 as a result of on-the-spot verification in the U.S. Tax Office, and the result of such on-the-spot verification did not refer to the Plaintiff in the instant pleadings, even though the main grounds for the decision to dismiss the inquiry by the Tax Tribunal, even though it was based on the main grounds for the decision to dismiss

④ The Plaintiff asserted to the effect that, around March 3, 2007, the Plaintiff was able to move in on the same day because the former lessee had not been able to move in on the same day. However, on September 11, 2007, the Plaintiff did not move in the move-in report on the lease of No. 001 dong 00000,000, and the former lessee did not move in the move-in report on September 11, 2007, the local confirmation was made on November 13, 2007, and the former lessee was able to move in on the same day. However, considering the fact that the Plaintiff had not been able to move in the resident registration card from 00,000 to 300,000,0000,0000, 300,000,000,000,000, 30,000,000, 30,000.

⑤ On January 25, 2006, at the time of the local confirmation of the land category in Seosan Tax Office, the competent tax official considered that the land which was not farming houses for a few years was developed in the current state of miscellaneous land and can be used as farmland because it was impossible to cultivate a farming house normally.

6. As to the key land, no direct payments compensating for rice income was paid in 2005, and the farmland ledger was drawn up on May 29, 2006 by the Plaintiff as the cultivator.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.