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양도소득세가 감면되는 8년 이상 자경농지에 해당한다고 볼 것인지 여부(취소)

조세심판원 조세심판 | 2009-11-23 | 조심2009중3068 | 양도

[Case Number]

Early High Court Decision 2009J3068 ( November 24, 2009)

[Items]

Transfer

[Types of Decision]

Revocation

[Summary of Decision]

The disposition taxable on the ground that the farmland is not cultivated on the ground that the actual cultivator's personal information, etc. is not provided without receiving compensation for agricultural loss and the performance of the farmland is not unjust.

[Related Acts]

Article 69 of the Restriction of Special Taxation Act / Reduction or exemption of capital gains tax for the Exemplary farmland / Article 66 of the Enforcement Decree of the Restriction of Special Taxation Act

【Disposition】

The imposition of capital gains tax of KRW 100,000,000 on the claimant's June 4, 2009 shall be revoked.

【Reasoning】

1. Summary of disposition;

A. On May 27, 1989, three non-Appellants jointly acquired and divided OOOOO or OOOOOO, and the claimant transferred the 1,144 square meters of the 125-7 Before the claimant's equity interest to OOOO on February 13, 2008 and reported and paid 100,000,000,000,000,000,000,000 paid for the amount of tax payable,60,904,660,660,660, because the farmland at issue falls under the reduction or exemption of capital gains tax due to one's own farmland at the time of filing a report on the transfer income tax on March 4, 2008.

B. As a result of an on-site investigation of the farmland at issue in March 2009, the agency issued a notice of KRW 100,000,000 to the claimant on June 4, 2009, on the ground that the claimant did not own the farmland at issue and excluded the application of reduction and exemption of transfer income tax on the amount of KRW 100,000,000,000 for the income tax for the year 208.

C. The claimant appealed and filed an appeal on August 10, 2009.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

On May 27, 1989, the claimant and three other three persons acquired the area of 2,548 square meters prior to OOOO as a co-ownership, and cultivated each by clarifying the boundary according to each owner's share as a self-survey, and the ownership of the co-owner was transferred due to an auction, and in March 2001, the lot number was divided according to each share of the co-owner. The claimant confirmed that the 1,14 square meters prior to OOOOOO whose share is at issue farmland was at issue, controlled independently from the time of the initial acquisition, with the copy of the register of OOO, OOOO, OOOOO, OOOOOOO, and OOOOOOO copy.

In 1968, the claimant has moved to the OOOO which is the location of the farmland at issue at the time of transfer of the farmland at the time of transfer, and has been actually in the actual farming condition at the time of transfer of the farmland at the time of transfer of the OOO, etc. It is not only the scale that the area of the 100 farmland at the time of transfer of the farmland at the time of transfer of the 1968, but it is not the scale that can request others to cultivate the farmland at a small scale of about 300 square meters, but also the claimant who is a rural origin has continued to cultivate various agricultural crops

(b) Opinions of disposition agencies;

The issue farmland is the co-owned share of the claimant, so it is not clear that the co-owner's land boundary partition is not clear, and the OO's payment of the agricultural compensation for the farmland is not made to the claimant, and the claimant has not presented the evidence of purchasing the agricultural machinery, fertilizers, agricultural chemicals, etc. which can be proved that the

In addition, since July 4, 1978, the claimant is deemed to have been an average of 16 million won per year while running the feed sales business at OOOOOOOOO from July 4, 1978, and the claimant is not a person who engages in cultivation of agricultural products during the period for which the farmland is in question or who has cultivated or cultivated at least 1/2 of agricultural works with his own labor, and thus, the disposition of this case is legitimate.

3. Hearing and determination

A. Key issue

Whether the transfer income tax on the issue farmland constitutes a self-arable farmland for at least eight years after the reduction of transfer income tax;

B. Relevant statutes

(1) Article 69 of the Restriction of Special Taxation Act: Reduction or exemption of capital gains tax for arable farmland

(1) With respect to income accruing from a transfer of land prescribed by the Presidential Decree (including those subject to non-taxation, reduction and exemption, and small collection) which is directly cultivated by a resident prescribed by the Presidential Decree residing in the location of such land for not less than eight years [not later than December 31, 2010 where such farmland becomes subject to the direct payment subsidy prescribed by the Presidential Decree to the Korea Agricultural and Rural Infrastructure Corporation under the Korea Agricultural and Rural Infrastructure Corporation and Farmland Management Fund Act or a corporation prescribed by the Presidential Decree which runs the agricultural industry (hereafter referred to as the "agricultural corporation" in this Article), not later than three years] and prescribed by the Presidential Decree, the tax amount equivalent to 100/100 of the capital gains tax shall be reduced or exempted: Provided, That where the relevant land is incorporated into a residential area, commercial area, and industrial area under the National Land Planning and Utilization Act (hereafter referred to as the "residential area, etc." in this Article) or has been designated as a reserved land other than farmland prior to the disposition of replotting under the Urban Development Act and other Acts, the tax amount equivalent to 100/100 shall be reduced.

(2) The term “resident prescribed by the Presidential Decree who resides in the location of the farmland” in the main sentence of Article 69(1) of the Enforcement Decree of the Restriction of Special Taxation Act means a person who cultivates while living in an area falling under any of the following subparagraphs (in case where the farmland eligible for management transfer subsidies under paragraph (3) is transferred to the Korea Rural Community & Agricultural Corporation under the Korea Rural Community & Agricultural Corporation and Farmland Management Fund Act (hereafter referred to as the “Korea Rural Community & Agricultural Corporation” in this Article) or a corporation under paragraph (2) for at least eight years (three years).

1. An area in a Si/Gun/Gu (referring to an autonomous Gu; hereafter the same shall apply in this paragraph) where farmland is located;

2. An area within a Si/Gun/Gu adjacent to an area referred to in subparagraph 1.

(4) The term "land prescribed by Presidential Decree" in the main sentence of Article 69 (1) of the Act means the farmland which has been cultivated by himself for at least eight years (three years where farmland subject to payment of management transfer subsidies under paragraph (3) is transferred to the Korea Agricultural and Rural Community Corporation or to a corporation under paragraph (2)) between the time of acquisition and the time of transfer, excluding the farmland falling under any of the following subparagraphs (amended on April 28, 2006; the Addenda to the Enforcement Decree of the Korea Agricultural and Rural Community Corporation and Farmland Management

1. Farmland located in the Special Metropolitan City, a Metropolitan City (excluding a Gun located in a Metropolitan City), or a Si (excluding Eup/Myeon areas in a Si in the form of Do and agricultural clothes established under Article 3 (4) of the Local Autonomy Act) as of the date of transfer, for which three years have passed since the date of incorporation into such area as farmland located within a residential area, commercial area, and industrial area under the National Land Planning and Utilization Act: Provided, That farmland incorporated into a residential area, commercial area, or industrial area under the National Land Planning and Utilization Act due to the implementation of a development project in a large-scale development project area (referring to a single project execution area in which authorization is granted) falling under any of the following items, and for which three years have passed since the date of incorporation into such area

(a) An area with at least 1,00 landowners within the project execution area;

(b) Area where the project area is larger than that prescribed by Ordinance of the Ministry of Finance and Economy;

2. Where any land other than farmland has been designated prior to the date of a replotting disposition, the farmland for which three years have elapsed from the date of such designation.

(12) For the purpose of Article 69 (1) of the Act, the term "direct cultivation" means that a resident is engaged in cultivating the crops or growing perennial plants on his own farmland at all times or is engaged in cultivating or cultivating not less than 1/2 of the farming work with his own labor (the new creation of February 9, 2006).

C. Facts and determination

The disposition agency, along with the assertion that the claimant has actually cultivated the farmland, presents the survey data of the OOO Appraisal Board, the confirmation of the public official in charge of compensation, the receipt of purchase of pesticides and fertilizers, and the certificate of friendship.

(1) According to Article 69 of the Restriction of Special Taxation Act and Article 66 of the Enforcement Decree of the same Act amended on February 9, 2006, when the transfer income tax is reduced or exempted, it is the land directly cultivated by a resident while residing in a location of the farmland or in a Si/Gun/Gu adjacent thereto for at least eight years, and the farmland is transferred at the time of transfer and meets the requirements for self-sufficiency for at least eight years from the date of acquisition of the farmland. The term "direct cultivation" here means that a resident engages in the cultivation of crops or the growing of perennial plants in his own farmland or growing or growing them with his own labor.

(2) A copy of the register of OOOO, OOO, OOO, OOO, and OOOOO. Three persons, other than the petitioners, transferred the ownership of OOO, 180.2/514, 664.5/2, OOO2,514, 40.3/2,514, OOOO2,514, 40.3/2,514, OOOOO-2,514, 269, 200, 2512.7/12,72, 203, 274,000 square meters and 269/37,000,000 square meters and 20,003,000 square meters and 30,000,000 square meters and 304,000 square meters, respectively.

The status of division, etc. of OOOO 2,437 square meters in lots, etc.

On December 29, 2000, OO acquired shares of O(644m2) which are the initial co-owner through a voluntary public auction is divided into three parcels (OO: 125m2,437m2,000,0000,0000,0000,0000,0000,0000,000,0000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000).

(3) According to the claimant's resident registration abstract, since June 23, 1974, the claimant is residing in OOOOOOOOOOOOOOO located adjacent to the location of the farmland at issue until now, and the OOOOOOOOOOOOOOO in the Si/Gun/Gu where the farmland at issue is located at the time of the acquisition of the farmland at issue. However, since the claimant belongs to the middle-gu district of the same administrative district at the time of the acquisition of the farmland at issue, it is confirmed that the claimant satisfied the requirements for residence.

(4) If an employee of the agency in charge of disposition receives an official trip on March 5, 2009 from the OOO on the spot, the documents investigated by the OOOO in order to calculate the compensation amount for the farmland at issue in June 2007 and the photographs verified that the OOOOO had been cultivated on the farmland at issue, and thus, the Claimant is farmland at the time of the transfer of the farmland at issue.

(5)On the other hand, the agency has the opinion that the claimant has not received the agricultural compensation for the disputed farmland, and that the applicant has been engaged in the feed sales business during the period of holding the farmland at issue and that the applicant cannot be deemed to have cultivated the farmland directly.

(6) However, according to the certificate of land expropriation for the controversial farmland of Gyeonggi-do, the claimant stated that he/she received compensation for the controversial farmland (801,680,180 won) in February 2008, and according to the statement concerning the payment of agricultural compensation for the controversial farmland that he/she submitted to the agency on April 2, 2009, the claimant and the claimant for the payment of compensation for agricultural loss should have claimed at the same time, but there is a need for urgent funds, and there is a fact that he/she paid only the land compensation for the waiver of the agricultural compensation until February 21, 2008, because he/she did not express his/her intention to waive the compensation for agricultural loss. According to the certificate of land expropriation for the first time, OOOOOO2 (OO200,0000 won), O200,0000 won, 10000,00000 won, 300,0000,0200,0000.

(7) In addition, the result that the claimant has conducted the sales business of the OM in 53 of the OO-si, So-gu, So-gu, So-called O-si, So-dong, 53 during the period in which the claimant holds the disputed farmland is as follows:

Details of the revenue and income amount of the requester.

(unit:,000 won)

Income amount of income in the year of accrual of the income amount in the year of accrual, 19827, 391, 56120315, 2601, 0521921, 9921, 9321, 25020414, 9351, 789200-200-20514, 7451, 3252016, 959620620616, 253,07020216, 8871, 165207107,61703

In light of the fact that the amount of income and income are 10,61,000 won or 27,39,000 won a year, and that in the case of the claimant's wife, the amount of income has not accrued since 1998 by the integrated computer network for national tax, it is difficult to view that the applicant's assertion that the principal agent mainly engaged in the dual-income relationship on the characteristics of the item (including feed) handled by the customer is not reliable.

(8) Comprehensively taking account of the above contents, the claimant and three others acquired the same area of 2,514 square meters prior to OOO as co-ownership shares, and maintained the boundary by dividing them according to each owner's share through self-survey, and it seems that the co-owner's ownership was divided and registered according to each share of 201 year in which the ownership of OO was changed among the co-owners. The claimant and 125-7 square meters prior to OOOO and 144 square meters were registered as co-ownership of the co-ownership of OOOO (the heir of OO who is the initial owner). However, the claimant actually cultivated the area of 1,144 square meters prior to OOO, OOOOOOOOOOO, 38 square meters prior to OOOOOO, 160,000 won or more, 1960,0000 won or more, 166,000 won or more of the land revenue amount, etc.

Therefore, without presenting objective evidence (personal information, etc. of the actual cultivator) to prove that the actual cultivator of the farmland at issue is not the claimant, the disposition agency is deemed to have failed to cultivate the farmland at issue as the ground that the claimant has the business performance without receiving the compensation for agricultural loss, and the disposition of this case is deemed to have been erroneous.

4. Conclusion

This case shall be decided as ordered under Articles 81 and 65 (1) 3 of the Framework Act on National Taxes, because the petition for appeal is well-grounded as a result of the deliberation.