Seoul Administrative Court 2010Gudan4776 ( November 10, 2010)

land shall be deemed not to be self-defisced, and land for non-commercial purposes;

In light of the Plaintiffs’ occupation, business scale, period of overseas stay, and place of purchase, etc., it is difficult to recognize that the Plaintiffs were self-sufficient in the instant land.

Income Tax Act other than Article 104-3

2012Nu36189 Revocation of Disposition of Imposing capital gains tax

1. OA 2. OB 3. OCC

1. The director of the Seocho Tax Office; and

Seoul Administrative Court Decision 2010Gudan4776 decided November 10, 2010

Seoul High Court Decision 2010Nu44605 Decided February 24, 2012

Supreme Court Decision 2012Du7899 Decided October 25, 2012

June 5, 2013

July 3, 2013

1. All appeals filed by the plaintiffs are dismissed.

2. The plaintiffs are responsible for total costs of the lawsuit after the filing of the appeal.

The decision of the first instance court is revoked. The imposition of each of the imposition of the respective imposition of the capital gains tax on April 7, 2009 by the Head of the Seocho Tax Office to the Plaintiff OA and OB on April 7, 2009 and the imposition of each of the imposition of the capital gains tax OOOOOOO which was made by the Plaintiff CC on April 7, 2009 shall be revoked.

1. The part citing the judgment of the court of first instance

The reasoning of the judgment of this court is as follows: 1. The details of the disposition of this case and 2. Whether the disposition of this case is legitimate; 2. The plaintiffs' assertion and 2. Relevant Acts and subordinate statutes are identical to the corresponding part of the judgment of the court of first instance. Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure

A. The plaintiff OA is an OOO-gu OO-dong 1446-11, the plaintiff Eul is an OO-dong 1648-2, and the plaintiff Eul is an OO-dong 56-3, respectively. The distance from the plaintiff OA and OB's residence to the land of this case is 20 km. The distance from the plaintiff OA and OB's residence to the land of this case exceeds 20 km. The distance from the plaintiff's residence to the land of this case exceeds 20 km.

B. In the farmland ledger at the time of the transfer of the instant land, in addition to the instant land, the following are written: (a) Plaintiff AA made an OO-dong 231-1 2,061 m2,061 m2,000 m2,000 O-si O-si 111 m2,249 m2, and 112 m25 m2,000 m2; (b) Plaintiff AB made an O-si O-si O-si O-si O-si O-si O-si 111 m25 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2

C. The occupation, content, and income of each Plaintiff during the retention period of the instant land are as follows.

1) Plaintiff OA was in office as a regular director of DD branch, and was engaged in each real estate leasing business located in OO-dong 51-2, O-dong 87-8, O-dong 87-8 at O-si at O-si. The sum of annual revenue of the above real estate leasing business is the amount of annual revenue of 2004 OOO, 2005, OOOOOO, 2006, 2006, and OOOOOOO in 2007.

2) The Plaintiff OB operated five businesses, including the operation of two gas stations whose annual sales (as of 2006 and 2007) exceed each OOO won. One of the above gas stations was started on April 19, 2005, and the part of the business operated around 2005 and around 2006 was closed.

3) The Plaintiff’s OCC engaged in each real estate rental business located in OO-Gu O-dong 638-6, O-dong 87-8, O-dong 87-8. The total annual revenue amount of the above real estate rental business is the level of OO-O-O-car in 2004, 2005, OO-O-O-O-O-car in 2006, 2006, and OO-O-O-O-car in 2007.

4) The number of days of departure and overseas residence of the Plaintiffs and their families during the retention period of the instant land is as follows.

- The 88th day of the plaintiff, the wife KimE 726 day, the OF 1,219 day;

- The 256th day of Plaintiff B, Australia 88th day, JH 906 day, J II 22 day

- Plaintiffs OCC 163 days, JJ 819 days, J 819 J 819 days

Facts without dispute over the basis of recognition, Gap's evidence 2 through Eul's evidence 5, Gap's evidence 1, 9, and 10, Gap's evidence 12 to 14, evidence 29 through evidence 31, and the purport of the whole pleadings.

3. Determination

Article 104(1)2-7 and Article 104-3(1)1(a) of the former Income Tax Act (amended by Presidential Decree No. 20681, Dec. 31, 2007) stipulate that the tax rate of 60/100 of the tax base of capital gains shall be applied to the owner of farmland who does not reside in the seat of the farmland under the conditions as prescribed by the Presidential Decree or who does not settle the land for non-business. In particular, Article 168-8(2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20681, Feb. 22, 2008) provides that if the owner of farmland does not reside in the seat of the farmland or does not have the burden of proof that the land is not subject to taxation by the owner of the farmland for non-business purposes, it means that the land is not subject to taxation by the owner of the farmland for non-business purposes or by the owner of the farmland for non-business purposes of Article 104(1).5).

1) In full view of the evidence submitted in the instant case and the following circumstances revealed in light of the factual relations as seen earlier, it is reasonable to deem that the Plaintiffs’ failure to cultivate the instant land is presumed reasonable.

① From the first instance court, the Plaintiffs asserted that the instant land was cultivated for self-consumption of organic farming and fishing villages. From June 29, 2004 to November 1, 2007, a large number of the Plaintiffs’ families were staying in Korea and living in Korea for the period of ownership of the instant land (3 years and four months from June 29, 2004 to November 1, 2007) was limited to five persons, including the Plaintiffs, the wife of the Plaintiff and the Plaintiff BB, and one of their females. During the above period, the number of days of departure from OB was not 256 days, and the number of days of departure from OCC was not more than 163 days. The Plaintiffs’ parents were cultivated as OO231-1,061 square meters ( approximately 623 square meters) owned by OA, and thus, it is difficult for the Plaintiffs to easily obtain and pay them with cultivating organic farming by their family members.

② The instant land is a relatively broad area of approximately 800 square meters, and it is difficult to cultivate the instant land only with the farming instruments, such as glusation, insertion, and scam, and in order to cultivate new crops after harvest, the Plaintiff’s work to cut down the soil, which makes it impossible for the Plaintiffs to work, and it must comply with the work by farming machines. However, even though the Plaintiffs asserted that the Plaintiff cultivated the instant land only with pure labor force and did not submit objective materials to recognize that the Plaintiff cultivated the instant land by borrowing agricultural machinery. Before remanding the pleadings, the instant court asserted that the instant land was modified with glus and drained by the order of glusing away at the end of March 2006, and the Plaintiff’s parents were supported by glusing the work machinery, which was managed by glusing the work of managing the Plaintiff’s parents.

③ Although the Plaintiffs asserted that they cultivated the instant land from the end of 2004 to 2 years, most of the receipts (No. 7) submitted based on purchase of seeds, etc. to cultivate the instant land in the administrative appeals proceeding are issued by a business entity located in the OO where their parents live and grow a garden. Therefore, it cannot be readily concluded that the receipts issued by the business entity located in the vicinity of the instant land are merely only two copies, but also not only two copies of receipts issued by the business entity located in the vicinity of the instant land. Since the date of issuance was about November 30 and December 2, 2004, it cannot be said that the purchase of the machinery used at the time of the first reclamation of the instant land as a dry field around November 2004 and that there was a direct relation with the crops after the reclamation.

④ A variety of crops have been cultivated in the instant land, such as the cutting-out, potato, potato, bean, shoulder, straw, and straw. The growing of various crops can easily be seen as easy for the Plaintiffs without experience in farming.

⑤ As seen above, in addition to the Plaintiff’s ownership of 231-1 2,061 m2,061 m2,061 m2,00 OO-dong O-si O-si, Plaintiff OB and OCC also share one half of 112 m2 m2,250 m2,000 m2,000 per annum (756 m2,000 m2,000) such as O-type O-type O-type O-type O-type O-type 2,49 m2,00 m2,000 m2,00,00 for each of the above farmland on each farmland ledger against the Plaintiffs.

【 Plaintiff OA concurrently holds office as a regular director of the planning office of DD branch and has engaged in real estate rental business with more than OOOO in 2004, from 2005, and more than OOOOOO. Plaintiff AB has operated two gas stations businesses with more than 2005 and 2006 annual sales OOOOO (as of 2006 and 2007). Plaintiff OCC has operated real estate rental business with more than OOOOO in 204 and more than 205 year since 2005, taking into account the aforementioned Plaintiffs’ occupation and business size, it seems that it is not easy and easy for Plaintiffs to directly cultivate the instant land.

2) Furthermore, it cannot be deemed that the above circumstances that led the Plaintiffs to conceal the facts of the Plaintiffs’ non-self-reliance are not eligible for the application of the empirical rule. The reasons are as follows.

(1) As seen above, in addition to the land in this case, each farmland ledger (as seen above subparagraph 2) against the plaintiffs, it is difficult to believe that, in light of the distance, etc. from the plaintiffs' residence, the farmland in OO that cannot be viewed as being self-defensive by the plaintiffs is also self-defensive, and thus, the written application for issuance of farmland ledger or each written application for issuance of self-defensives (Class A 2), and the preparation of self-defensives by members of the Farmland Management Committee (Class A

② As seen above, most of the receipts, which were submitted by the Plaintiffs for purchasing seeds, etc. to cultivate the instant land, are located in other farmland owned by the Plaintiffs, and were issued by an OO-si business operator who cultivated a garden with their parents residing therein. Therefore, it cannot be readily concluded that the instant land is for the purpose of cultivating the instant land. In light of the timing of its issuance, two copies of receipts issued by the business operator located near the instant land cannot be said to have a direct relationship with the cultivation of agricultural products after the reclamation of the instant land.

③ With respect to the toll receipt (No. 22) of the part adjacent to the instant land issued by the Plaintiff Ora letter to visit the instant land by using the border highway, there is room to view that the publishing date is not the weekend, and it is related to the company’s business that Plaintiff Ora letter works as a regular member. Furthermore, the issuing date of the toll receipt is from February 13, 2005 to April 6, 2005, which falls under the ordinary hours of farming except for Chapter 1, May 20, 2006, from March 1, 2006 to March 26, 2006, and from March 206, it is difficult for the Plaintiffs to conclude that the toll receipt was issued at the latest from March 21, 206 to March 26, 2006, and it appears that the Plaintiffs were issued at the time of entering the instant land, other than the toll receipt or the toll receipt from the Plaintiff OCC and OB to the 20th of November 26, 2005.

④ Each testimony of EN Co., Ltd. (Evidence No. 7), written confirmation of facts (Evidence No. 8, 27, 28 of A), written confirmation (Evidence No. 15 of A), written confirmation (Evidence No. 15 of A), and this Court’s witness MM before and after remanding to the case, is an employee of NN Co., Ltd. (NN), its relevant hospital, or relative, PP commemorative hospital, or an employee of the plaintiffs who purchased the instant land from the plaintiffs, and thus it is difficult to believe the contents of the statement or testimony. According to the court’s order to prepare the name prior to remand, it cannot be readily concluded that the plaintiffs made a statement of the contents that the plaintiffs had experienced directly by the plaintiffs. Moreover, even if the fact-finding on the instant land was followed by the fact-finding survey by the head of Sungnam-si Office after remand-si, Korea.

C. In light of the above circumstances, although it was revealed that the plaintiffs presumed that the land in this case was not subject to self-determination, it cannot be said that the facts were not subject to the application of the empirical rule.

Therefore, each of the dispositions of this case, which reported the transfer of non-business land under the premise that the plaintiffs did not own the land of this case, is legitimate. The plaintiffs' assertion cannot be accepted.

4. Conclusion

The judgment of the first instance is justifiable. All appeals filed by the plaintiffs are dismissed.