Standard for period of non-business land under Article 168-6 of the Enforcement Decree of the Income Tax Act

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

O On January 24, 200, the Plaintiff acquired 695/2,680 shares of 00 p.m. 2,680 m. (hereinafter referred to as "sale farmland"), on March 13, 2008, and acquired 00-0 m. 469.5 m. (hereinafter referred to as "alternative farmland") from the above TransferO on June 4, 2008.

In addition, the plaintiff filed an application for reduction of capital gains tax on the ground that the transfer of selling farmland to the defendant and the acquisition of alternative farmland are farmland substitute, and thus constitutes reduction or exemption of capital gains tax.

(O) However, on January 8, 2010, the Defendant rendered the instant disposition imposing capital gains tax of KRW 57,510,207 for the year 2008 on the ground that the Plaintiff had B made ever paid 3 years or more of the five years immediately before the date of the transfer of farmland sold by proxy. Therefore, since farmland sold constitutes land for non-business use, the Defendant excluded the reduction of capital gains tax due to farmland substitute land from the reduction of capital gains tax, and applied the heavy tax rate (60%) on the land for non-business use.

O The Plaintiff appealed and filed an appeal with the Tax Tribunal on August 3, 2010 on April 8, 2010. However, the Tax Tribunal dismissed the appeal on March 22, 2010. The Plaintiff filed the instant lawsuit on June 20, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the time when the Plaintiff leased the farmland sold to thisB from April 2006 and the Plaintiff was self-employed before that time, the period of cultivation of the farmland sold to thisB from March 1, 2008 as of March 1, 2008, which was the time of transfer of the farmland sold, does not exceed two years among the five years immediately preceding the date of transfer, the Defendant’s deeming the farmland sold under different premise as the land for non-business and applying the heavy tax rate of capital gains tax (60%) is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) According to the above relevant laws and regulations, where a farmland owner does not reside in a location of farmland or does not cultivate farmland for a period exceeding two years from the five years immediately before the date of transfer, the heavy tax rate of capital gains tax (60%) shall apply to non-business land.

(2) In full view of the following circumstances, the period during which the Plaintiff did not own own own own own farmland (i.e., the period during which the Plaintiff leased farmland sold to thisB by the Plaintiff after the end of the period) can be acknowledged as having exceeded two years from March 1, 2008, which was at the time of sale, as of March 1, 2008. Thus, the instant disposition that applied the heavy tax rate (60%) of capital gains tax to the land for non-business by deeming the sold farmland as land for non-business purposes and applying the heavy tax rate (60%) to the instant disposition is lawful.

① On September 10, 2009, thisB confirmed that the Defendant’s tax official, after the on-site investigation, leased the sold farmland to the Plaintiff and paid rice 17 Gams each year for rent from 2005 to 2008. The principal submitted a written confirmation (Evidence 2-1) that “I am farmers in the farmland directly sold before his retirement from 2005,” and that “I am farmers in the farmland in the vicinity of the sold farmland.” On September 9, 2009, the Defendant’s tax official, after the on-site investigation, cultivated B from 2005 to 2008 the farmland sold to the Defendant’s revenue official, and the woman(s) residing in the OE 2-23 each written confirmation that “I am cultivated the 64 years old portion(s) portion(s) amount(s) amount(s) amount(23) amount(s) amount(s) amount(3) amount(s) amount(s) amount(23) amount(3) amount(s) amount.

② This “B” testified to the effect that the above written confirmation was organized by the public officials in charge of the Defendant and himself, and that it was signed and sealed after confirming whether the content was in conformity with the above written confirmation. In fact, this BB retired from office as a 8th class local operator at O elementary school on December 31, 2005, and as such, it appears that the pertinent year during which it commenced to cultivate rice in the farmland in sale would be accurate, and that the contents of each written confirmation submitted by the said ParkCC and NaD coincide with each other, and there is no circumstance to deem that the said BB submitted a written confirmation different from the facts that it had no special interest with the Plaintiff, and that it cultivated rice in the farmland in sale from 2005 to 2008, before the retirement age was retired.

(3) However, in contrast to the contents of the above written confirmation, this B bears the testimony to the effect that the time when a rice farmer was dried out of April 2006 when it leased the farmland to be sold, unlike the contents of the above written confirmation, and the above ParkCC and DoD also submit each written confirmation (Evidence No. 9-1, No. 2). However, it is difficult to believe that the testimony or the content of each written confirmation is or appears to have been made at the Plaintiff’s request after the disposition of this case.

④ Furthermore, even if B, from April 2006, worked as rice farmer in the farmland sold from around April 2006, in order for the Plaintiff to have cultivated or cultivated 1/2 or more of the farmland at its own work in order to have the farmland sold, the fact that the transferred land was used as farmland should be proved actively by the claimant. The fact that the transferred land was used as farmland is recognized, and the transferor is not presumed to have been minor (see, e.g., Supreme Court Decisions 92Nu1893, Jul. 13, 1993; 94Nu996, Oct. 21, 1994). However, even if the Plaintiff engaged in another occupation, it cannot be deemed that it was indirectly engaged in agriculture while engaging in other occupation, and it cannot be deemed that it constitutes a self-employed farmer directly or indirectly engaged in the occupation (see, e.g., Supreme Court Decision 98Du27, Feb. 27, 1998).

However, in the farmland ledger, the Plaintiff’s mother, entered E in the farmland ledger as a farmer of the sold farmland, and the direct payments for preserving rice income, etc. also received E, and even in the written confirmation submitted by DaD on September 9, 2009, the fact that DoD had been cultivated by DoB prior to DoB’s cultivation in the farmland, women’s residing in O-Eup (including approximately 64 years of age) appears to refer DoE. The Plaintiff held office as a public official of the ○○○-Gun Office, and the Plaintiff was not a public official of ○○○○○, and it is difficult to view the Plaintiff’s sale of farmland as farmland and approximately 2 km 00 meters away from O-U-U.S.’s sale of farmland and about 200 Do-U.S.’s own farmland and about 200 Do-U.S.’s own farmland prior to 200 Do-U.S. sale of farmland.

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.