Review Transfer 2009-0150 (Law No. 28, 2009)

Reduction of or exemption from capital gains tax on substitute land for farmland

The payment was received while serving in the construction company for the period of farmland retention, and the fact that the real estate brokerage office was opened and operated, and the simple receipt of fertilizers, etc. presented by direct cultivation evidence, which is not recognized as the claimant's own competition, is unclear.

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 disposition of imposing KRW 186,215,150 on the Plaintiff on April 1, 2009 shall be revoked.

1. Circumstances of the disposition;

A. The Plaintiff acquired on May 10, 2004 and transferred on August 20, 2007, 834, Do-ri, 1,990 square meters (hereinafter “the previous land”).

나. 원고는 2008. 5. 28. 피고에게 양도소득세 신고를 하면서 대토 예정을 이유로 조세특례제한법 제70조, 구 조세특례제한법 시행령(2008. 2. 22. 대통령령 제20620호로 개정되기 전의 것 이하 같다) 제67조의 규정에 의한 양도소득세 감면신청을 하였고, 2008. 8. 19. 인천 강화군 하점면 ★★리 1021 답 1,177.9㎡(이하 '이 사건 대토농지'라 한다)를 49,500,000원에 취득하였다.

C. On April 1, 2009, the Defendant excluded the Plaintiff from the application for reduction or exemption of transfer income tax under the Restriction of Special Taxation Act on the ground that the Plaintiff did not own the previous land during the period of possession of the previous land, and notified the Plaintiff of the correction and notification of KRW 186,215,150, which was calculated by applying the transfer income tax rate of 60% to the transfer of the previous land for non-business use (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed a request with the Commissioner of the National Tax Service for review on June 25, 2009, but was dismissed on August 28, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff directly cultivated the previous land of this case, the Plaintiff excluded the application for reduction or exemption of capital gains tax under the Restriction of Special Taxation Act by deeming otherwise, and the instant disposition that deemed the transfer of land for non-business purposes is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Article 70(1) of the Restriction of Special Taxation Act, Article 67(1) and (2) of the former Enforcement Decree of the Restriction of Special Taxation Act provides that the tax amount equivalent to 100/100 of the transfer income tax on the income accruing from the substitute land of another farmland within one year from the date of transfer of the previous farmland shall be reduced or exempted for 10/100 of the transfer income tax on the land which is cultivated directly by the resident while living in the previous farmland for 3 years or longer, or cultivated or cultivated 1/2 or more of crops or perennial plants on his own, or cultivated or cultivated 1/2 or more of farming works on his own labor, excluding the farmland for 0 years or more, 104(1)7 and 104-3(1)1 (a) of the Income Tax Act, 168-6 subparag. 2, 168-8-2, and 25 of the Farmland Act (amended by Presidential Decree No. 20618, Feb. 22, 2008).

(2) Comprehensively taking account of the overall purport of the arguments in the evidence Nos. 7, 8, and 9 as to the instant case, the Plaintiff operated a licensed real estate agent office in Kimpo-dong from around 2003, prior to the ownership of the previous land to the date of Kimpo-si, and the Plaintiff was employed as an employee in Ko Young-si Construction from around 2004 to 2008, and the Plaintiff was the purpose of tax reduction or exemption, not for crops for the purpose of cultivating crops and harvesting crops, but for the purpose of cultivating crops, the Plaintiff was mainly employed by the residents and the employees of the farming-do dong residents and the manpower company, and neglected harvested crops without managing them. The above recognition is insufficient solely based on the evidence Nos. 4 to 8, evidence No. 10-1, 2, and 3, and there is no counter-proof evidence. Thus, it is reasonable to deem that the Plaintiff did not change the previous land during the period of owning the previous land.

Therefore, the disposition of this case which applied 60% of transfer income tax rate to the plaintiff is legitimate, 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.