Appellate Decision 201J 1613 (Law No. 1106.30)

It is difficult to recognize as being a serious one for not less than eight years on the transferred land.

It is difficult to recognize the assertion that agricultural crops have been cultivated directly from the transferred land for not less than eight years, and the disposition imposing capital gains tax is legitimate without applying the reduction or exemption clause.

Article 69 of the Restriction of Special Taxation Act

2011Revocation of disposition of revocation of imposition of capital gains tax, etc.

XX

Head of the tax office

April 26, 2012

May 24, 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 December 1, 2010 is revoked.

1. Details of the disposition;

A. On December 4, 2001, the Plaintiff purchased and owned 3,989m2 (hereinafter referred to as “instant land”) from the Japanese-gun, Busan-gun, Busan-gun. The captain of Busan-gun purchased 000m2 (hereinafter referred to as “instant land”). On March 12, 2010, the Plaintiff acquired the instant land through consultation in accordance with the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects.

B. On June 4, 2010, if the Plaintiff acquired the instant land in 000 won and directly cultivated it for not less than eight years, the Plaintiff reported the transfer income tax for 2010 that was reduced or exempted from the transfer income tax pursuant to Article 69(1) of the Restriction of Special Taxation Act on the instant land.

C. On December 1, 2010, on the ground that the acquisition value of the instant farmland was KRW 000, and that the Plaintiff did not directly cultivate the instant land for at least eight years, the Defendant imposed capital gains tax of KRW 000 on the Plaintiff for the year 2010 (hereinafter “instant disposition”). Accordingly, the Plaintiff filed an objection with the Commissioner of Busan Regional Tax Office, and the Commissioner of Busan Regional Tax Office rendered a decision to correct the acquisition value of the instant land as KRW 000 on January 26, 201. The Defendant, upon the said decision, notified the Plaintiff of the reduction of KRW 00 among the capital gains tax by correcting the said amount.

D. The Plaintiff appealed and filed an administrative appeal with the Tax Tribunal, but the Tax Tribunal dismissed the Plaintiff’s claim on June 30, 201.

[Ground of recognition] Facts without dispute, Gap evidence 3, Gap evidence 4-1, 2, 3-1, 5-2, Eul evidence 1-1, Eul evidence 1-2, Eul evidence 1-1, 12, 13, and 14, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff resided in the location of the instant land, which is farmland, and cultivated the said farmland directly for not less than eight years. Therefore, the instant disposition against which the Defendant imposed capital gains tax without applying the reduction or exemption provision of capital gains tax under the Restriction of Special Taxation Act, should be revoked as it is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

According to Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 10406, Dec. 27, 2010); Article 66(1) and (12) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22583, Dec. 30, 2010); where the transferor resides in a Si/Gun/Gu where farmland has been located for at least eight years; an area within a Si/Gun/Gu adjacent thereto; or an area within 20 kilometers in a straight line from the farmland in a Si/Gun/Gu; or where the transferor resides in an area within 20 kilometers in a straight line from the farmland owned for at least eight years and engages in cultivating or cultivating crops or perennial plants with his/her own labor, capital gains tax shall be reduced or exempted; and where the transferor cultivates the land as farmland, he/she must prove such fact (see, e.g., Supreme Court Decision 92Nu12934, Jul. 13, 1993>

In light of the evidence No. 7, No. 8-1, No. 3, No. 6, Eul evidence No. 8-1, No. 9-2, and Eul evidence No. 9-3, and witness KimA's testimony, it is difficult to recognize the facts that the plaintiff directly cultivated agricultural products from the land of this case for not less than 8 years only on the basis of the evidence No. 7, No. 8, No. 9, and No. 10, No. 1, No. 7-1, No. 7-2, and No. 7-1, No. 11-2, No. 12-1, No. 2, and No. 12-3, No. 13-1, No. 2, and No. 14-1 through No. 6.

Therefore, we cannot accept the Plaintiff’s assertion that the Plaintiff directly cultivated crops on the instant land for not less than eight years.

3. Conclusion

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