Seoul High Court (Chuncheon) 2012Nu53 (Law No. 16, 2012)

Early High Court Decision 2010Du0738 ( October 25, 2011)

Since it is not deemed that the forestry was engaged in or the forest trees were subject to separate transactions, the entire amount constitutes capital gains.

If there was no growing activity to produce forest trees or no feasibility is recognized even if the forest trees were transferred along with the forest land, income generated from the transfer of the forest trees shall be subject to the transfer income tax, except in extenuating circumstances to deem that the forest trees were subject to transactions separate from the forest land.

2012du12402 Revocation of revocation of imposition of transfer income tax

The AA

Head of the District Tax Office

Seoul High Court (Chuncheon) Decision 2012Nu53 Decided May 16, 2012

September 13, 2013

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Article 19(1) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter “Income Tax Act”) provides that “income generated from the forestry” under subparagraph 1 as a result of listing the income subject to business income. Meanwhile, the main sentence of Article 29 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; hereinafter “Enforcement Decree of the Income Tax Act”) delegated by Article 19(3) provides that “The scope of businesses under the provisions of each subparagraph of Article 19 of the Act shall be the Korean Standard Industrial Classification except as otherwise provided in this Decree.” The former Korean Standard Industrial Classification (amended by Act No. 9897, Dec. 28, 2007; hereinafter “Korea Standard Industrial Classification”) is amended by Act No. 207-53, Jan. 1, 2008; hereinafter “Korea Standard Industrial Classification”) shall not be included in the forest income amount of production and Transfer.

In light of the language, purport, structure, etc. of these regulations, in cases where forest trees are transferred along with forest land, it is reasonable to view that, in principle, income generated from the transfer of forest trees constitutes business income, only the remaining income, excluding that generated from the transfer of forest trees, is subject to taxation of capital gains tax following the transfer of forest land. In such cases, whether income generated from the transfer of forest trees constitutes business income ought to be determined in accordance with ordinary social norms by taking into account whether activities for growing for the production of forest are conducted for profit, the substance, scale, period, mode, etc. of the forest, to the extent that business activities can be seen as business activities, and whether there was continuity and repetition of the forest trees, even if the forest trees were transferred along with forest land, barring any special circumstance to deem that the forest trees was subject to transactions separate from the forest land, the entire income generated from the transfer of forest land is subject to taxation of capital gains tax, and whether the forest land and the forest are subject to assessment of neighboring forest land should be objectively determined by comprehensively taking into account the transaction purpose of the parties, details of the forest land, and its present value.

2. In full view of the adopted evidence, the lower court determined that the Defendant’s disposition based on the premise that the entire sale price of the instant forest was income accrued from the transfer of the instant forest, on the ground that it is reasonable to deem that the Plaintiff did not separate the transfer price of the forest trees and the transfer price of the forest land while selling the obstacles, such as forest trees, as included in the object of sale and purchase, and that the confirmation document prepared by the purchaser of the instant forest was not for the purpose of land sale, and that the sale and purchase was not for the purpose of land sale, and that the instant sale and purchase agreement was for the purpose of calculating only the land price, and that the instant trees were additionally included in the calculation of the land price, and that the confirmation document and specification of the object of sale and purchase prepared by the broker at the time of the instant sale and purchase agreement also did not contain all the matters on forest trees.

3. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles regarding the interpretation of juristic act and the probative value

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.