early 209 Heavy1878 (2009.07.07)

right of assertion that land for non-business use is not land by self-determination

Since it cannot be deemed that each land has been depreciated for a period exceeding the period exceeding three years from the possession period of the land, the period exceeding one year from the three years immediately preceding the transfer date, and the period exceeding 20/100 of the possession period of the land, springing the land for non-business use as land is legitimate.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 157,174,890 for the year 2007 against the Plaintiff on December 11, 2008, which exceeds KRW 70,087,710, shall be revoked.

1. Circumstances of the disposition;

가. 원고는 김포시 ☆☆읍 ★★리 161-1 답 41.1㎡, 같은 리 161-2 답 3,933㎡(이하 '이 사건 각 토지'라 한다)를 2004. 5. 24. 취득하여 2007. 7. 13. 양도하였고, 2007. 10. 9. 김포시 ●●면 ○○리 589-3 답 2,510㎡(이하 '이 사건 대토농지'라 한다)를 취득하였다.

B. On September 30, 2007, the Plaintiff: (a) filed a preliminary return on the tax base of capital gains tax for the year 2007 following the transfer of each land of this case to the Defendant; and (b) deemed that the transfer income tax was reduced or exempted pursuant to Article 70 of the Restriction of Special Taxation Act; and (c) applied for reduction of

C. On December 11, 2008, the Defendant deemed that the Plaintiff did not own each of the instant land, and excluded the application for reduction and exemption, and applied heavy taxation (60%) by deeming the transfer of each of the instant land as transfer of non-business land, and notified the Plaintiff of KRW 157,174,890 for transfer income tax belonging to the year 2007 (hereinafter “instant disposition”).

D. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on April 13, 2009, but was dismissed on July 7, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's principal

The Plaintiff, while residing in the location of each of the instant lands from May 13, 1988 to the date of acquisition of each of the instant lands, acquired each of the instant lands from around 2005 to the time of transfer from around 2005, did not constitute the transfer of non-business land, but the instant disposition otherwise deemed unlawful.

(b) Related statutes;

It shall be as shown in the attached Form.

C. Determination

(1) Articles 104(1)2-7 and 104-3(1)1 (a) of the Income Tax Act, subparagraph 2 of Article 168-6, Article 168-8-8(1) and (2) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008), and subparagraph 5 of Article 2 of the Farmland Act, where the ownership period of land is not less than three years and less than five years, where the ownership period of land is more than three years and less than three years,

(2) Comprehensively taking account of the purport of body evidence Nos. 5, 6, 7-1, 2, 3, 8, 9, 10, 12, 13, 14, 17, and 16-1 through 4 of the evidence No. 11, each of the following facts are insufficient to reverse the above recognition merely on the basis of the following: (a) the gambling line, which transferred each of the instant land to the Plaintiff, cultivated crops in each of the instant land until 2005; and (b) the Plaintiff did not cultivate crops in each of the instant land during the above period; and (c) contrary to the evidence Nos. 11-1, 2, 3, and 18-1, 5, 6, 7-1, 3, 8, 9, 10, 12, 13, 14, and 16-4.

Therefore, since the time when the Plaintiff started to cultivate crops from each land of this case is about 2006, the Plaintiff cannot be deemed to have replaced each land of this case for a period exceeding a period exceeding three years after subtracting three years from the period of land ownership, a period exceeding one year from the three years immediately before the date of transfer, and a period exceeding 20/100 of the period of land ownership. Thus, the disposition of this case by deeming the transfer of each land of this case as the transfer of land for non-business is lawful, and the Plaintiff’s above assertion is without merit.

3. Conclusion

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