Attorney Lee In-bok, Counsel for the defendant-appellant

Litigation performers 000

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The defendant's refusal to correct the transfer income tax against the plaintiff on June 26, 2009 is revoked.2. The purport of appeal is revoked

The same shall apply to the order.

A. On March 8, 197, the Plaintiff acquired and possessed each of 00:0 :00 :00 :1-5 11,759 :00 ; 11,759 m (hereinafter referred to as "the land of this case") and transferred all of the land of this case on October 1, 2007, around January 15, 1987, the Plaintiff acquired and kept a square of 41-3 m (hereinafter referred to as "the land of this case") and 241m (hereinafter referred to as "the land of this case"). < Amended by Act No. 7371, Oct. 1, 2007; Act No. 737-109, Jan. 15, 1987; Act No. 13373, Feb. 3, 200; Act No. 8568, Oct. 3, 2007>

B. On November 23, 2007, the Plaintiff filed an application for reduction or exemption of capital gains tax pursuant to Article 69 of the former Act on Special Cases of Taxation (amended by Act No. 9276, Dec. 29, 2008; hereinafter referred to as the "former Act on Special Cases of Taxation") on the ground that he/she directly cultivated the instant land for at least eight years when filing a preliminary report on the tax base of capital gains tax on the instant land. The Defendant demanded the Defendant to file a revised return without recognizing it through on-site verification and to file a revised return. On April 28, 2009, the Plaintiff filed a revised return on the amount of capital gains tax to KRW 117,396,368 if the Plaintiff did not file the revised return, but did not pay the tax amount.

C. On May 19, 2009, the Plaintiff filed a request for correction of the revised return by asserting that the application for the revised return was lawful, which was filed on the ground of the Plaintiff’s direct cultivation for at least eight years. However, on June 26, 2009, the Defendant refused the above request for correction on the ground that the Plaintiff’s direct cultivation was not recognized for at least eight years (hereinafter referred to as the “instant disposition”), and on July 1, 2009, notified the Plaintiff to pay the relevant tax amount in order to collect KRW 117,396,360 for the transfer income tax reverted to the year 2007, for which the Plaintiff did not pay the revised return (the Defendant paid the additional tax for arrears with respect to the transfer income tax reverted to the year 2007, from KRW 19,582, KRW 363 to KRW 11,561,615).

D. The Plaintiff appealed and filed a request for a trial with the Tax Tribunal on December 29, 2009 on September 14, 2009, but was dismissed on October 7, 2010.

[Ground of recognition] The facts without dispute, Gap evidence Nos. 1-2, Gap evidence No. 8, Eul evidence Nos. 3, 5, Eul evidence Nos. 1, 4 and 9, respectively, and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The Plaintiff acquired the instant land and directly cultivated the instant land from around 1998 to his father and wife living together with his father and wife living together with the instant land, and thus, the transfer income tax on the instant land should be fully reduced or exempted pursuant to Article 69 of the former Restriction of Special Taxation Act. However, the instant disposition rejecting the Plaintiff’s request for correction without recognizing it is unlawful.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. Article 69(1) of the former Act on the Special Cases concerning Taxation provides that the tax amount equivalent to 100/100 of transfer income tax shall be reduced or exempted for the income accruing from the transfer of land prescribed by the Presidential Decree among the land which is subject to agricultural income tax, which is directly cultivated by the resident prescribed by the Presidential Decree residing in the location of the farmland for not less than eight years, and Article 66(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by the Presidential Decree No. 20620 of Feb. 22, 2008) provides that the resident residing in the location of the farmland under Article 69(1) of the former Enforcement Decree of the Restriction of Special Taxation Act refers to the person who has cultivated the farmland for not less than eight years while residing in the Si/Gun/Gu where the farmland is located or in the area of Si/Gun/Gu adjacent thereto, and Article 69(1) of the same Act provides that "direct cultivation" refers to the farmer's engaging in the cultivation of agricultural products or growing of perennial plants at all times or by his own labor force.

According to the language and text of each provision, the former Restriction of Special Taxation Act and its Enforcement Decree, it does not separately stipulate the concept of ‘direct cultivation' or ‘self cultivation' which is one of the requirements for reduction or exemption of capital gains tax, and at that time, the Supreme Court interpreted that the meaning of ‘direct cultivation' or ‘self cultivation' is included not only in cases where the transferor conducts cultivation by employing another person under his/her responsibility and account, but also in cases where he/she causes a family member living together with another person to cultivate it (see, e.g., Supreme Court Decisions 92Du4642, Oct. 9, 192; 2003Du2465, May 30, 1994; 200Du1665, Oct. 21, 1994; 200Da2665, supra, the Supreme Court has to interpret the meaning of ‘self-taxation' as one-taxation or non-taxation for farming by the former Enforcement Decree of the Restriction of Special Taxation Act.

Therefore, as to whether "direct farming" is "direct farming of farmland subject to reduction or exemption of capital gains tax", the person who is engaged in agriculture at all times shall be determined to have cultivated the farmland directly regardless of his/her own labor ratio, and the person who is engaged in the partial production for reasons such as having other occupation, not engaging in agriculture at all times, shall be determined to have cultivated the farmland directly only when the labor ratio of "self" excluding family members, etc. during the whole farming work is not less

B. The Plaintiff asserts, “Article 66(12) of the former Enforcement Decree of the Restriction of Special Taxation Act, which was newly established on February 9, 2006, stipulates the meaning of “direct farming” which is a requirement for tax reduction or exemption without specific delegation by law, and thus, is invalid in violation of the principle of no taxation without law.”

As seen earlier, as seen in Article 69(1) of the former Restriction of Special Taxation Act, the specific scope of the land cultivated directly for not less than eight years is to be prescribed by the Presidential Decree while declaring the exemption from capital gains tax. Article 66(4) through (8) of the Enforcement Decree of the same Act provides for the subject of exclusion from the farmland cultivated by himself/herself for not less than eight years, and Article 2(12) provides for the same content as the self-defense provision under subparagraph 5 of Article 2 of the Farmland Act. Thus, it cannot be deemed as an invalid provision without any provision of delegation under Article 66(12) of the Enforcement Decree of the former Enforcement Decree of the Restriction of Special Taxation Act (see Supreme Court Decision 2010Du8423, Sept. 30, 2010). Therefore, the above assertion is without merit.

C. Based on the above legal principles, the plaintiff's 1-4 evidence No. 2, Gap's 1-3, 9-1-7 evidence No. 4, and Gap's 6-1-7, and the witness evidence No. 9-1-7 of the first instance court's 000, G and J's 9-1-6, which were the plaintiff's 1-6-1, and the plaintiff's 9-1-6-1, were the plaintiff's 1-6-1, 9-1, 9-1, 9-1, 9-1, 6-1, 9-1, 9-1, 9-1, 9-1, 9-2, 9-1, 9-2, 9-1, 6-2, 9-1, 9-2, 9-2, 9-2, 9-2, 9-3, 9-2, and 9-3, respectively.

However, according to the purport of the whole pleadings by the witness I as stated in the evidence Nos. 1. 2, 2, 12, 13, and 14 of Eul evidence Nos. 2 and 8, the plaintiff was operating a pharmacy from around 1967 to around 00, and from around March 1984 to December 19, 198, the plaintiff did not directly submit a confirmation document about the plaintiff's 1's farmland as well as the plaintiff's 3 golf membership from around 0, 1988 to the above 10 days, and the plaintiff did not directly submit a confirmation document about the plaintiff's 1's farmland as well as the plaintiff's 1's 3 golf membership from around 1988 to the above 10th day. The plaintiff was claiming that the plaintiff had been using the farmland of this case for 00 meters since 198 to the above 10th day after 198.

D. In full view of the above facts, the farmland ledger is an internal data prepared and kept for the purpose of farmland management and the efficient promotion of agricultural policies, and it is insufficient to use it as data for the verification of objects of tax reduction and exemption, and land No. 3 is not registered in the farmland ledger.) In light of the fact that the plaintiff and his family members testimony about their self-sufficiency, etc., it is doubtful that the plaintiff could be deemed that he cultivated the land of this case together with his family members, including the plaintiff's parents and wife, for 8 years or longer, and even if the plaintiff cultivated the land of this case with their family members, it is difficult to view that the plaintiff had a considerable labor force to have been administered on the land of this case, which is more than 1.2 m in total, in view of the fact that the plaintiff had no choice but to have been working on the farmland of this case, and that the plaintiff had no choice but to have been working on the farmland of this case, which is more favorable to the plaintiff's family members in light of the fact that he had been working on the farmland of this case.

Therefore, since the Plaintiff cannot be deemed to have cultivated the instant land directly for more than 8 years, the Plaintiff’s assertion on the premise that the fact of direct cultivation is recognized is without merit, and the instant disposition that rejected the Plaintiff’s request for correction of capital gains tax without applying reduction or exemption provisions on the ground that the instant land does not constitute farmland cultivated directly for more than 8 years on the ground that it does not constitute farmland cultivated directly by the Plaintiff. The conclusion is legitimate.

Therefore, the plaintiff's claim of this case is dismissed without any reasonable ground, and the judgment of the court of first instance with different conclusions is unfair, and it is so revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Newly Inserted by Act.

[Judgment]

/ former Restriction of Special Taxation Act (amended by Act No. 9276 of Dec. 29, 2008)

Article 69 (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

(1) With respect to any income accruing from a transfer of land prescribed by the Presidential Decree among land which is subject to taxation of agricultural income tax (including non-taxation, reduction and exemption, and small collection objects) by not later than eight years (in case where such farmland is transferred to the Korea Rural Community Corporation established under the Korea Rural Community Corporation and Farmland Management Fund Act (hereafter referred to as the "Korea Rural Community Corporation" in this Article) or to such corporation as prescribed by the Presidential Decree which mainly carries on agriculture (hereafter referred to as the "agricultural corporation" in this Article), not later than December 31, 2005, not later than five years; and in case where such farmland is subject to payment of subsidies for managerial relocation as prescribed by the Presidential Decree, not later than three years, not later than December 31, 2010) which is directly cultivated by the resident residing in the location of such farmland, and which is subject to taxation of agricultural income tax (including the farmland subject to non-taxation, reduction and exemption, and small collection, the tax amount equivalent to 10/100 of the transfer income tax shall be reduced or exempted by not later than ten percent of the land substitution area prescribed by the Act.

(3) A person who intends to be subjected to the provisions of paragraph (1) shall apply for reduction or exemption as prescribed by the Presidential Decree. A person who intends to be subject to the application of the provisions of paragraph (1) shall be an administrative agency. In addition, Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 20620, Feb

(1) For the purpose of the text of Article 69 (1) of the Act, the term “resident prescribed by the Presidential Decree residing in the location of the farmland” means a person who has cultivated while living in the area (including the area corresponding to the relevant area at the time of commencement of cultivation, but which does not fall under it due to a reorganization of administrative district) falling under any of the following subparagraphs for not less than 8 years (in case of transfer to the Korea Agricultural and Rural Infrastructure Corporation under the Agricultural Infrastructure Corporation Act (hereafter in this Article, referred to as the “Korea Agricultural and Rural Infrastructure Corporation”) or to the corporation under paragraph (2), 5 years, and in case of transfer of the farmland subject to a payment of management transfer subsidy under paragraph (3) to

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, among those located in the Special Metropolitan City, Metropolitan City (excluding Guns located in Metropolitan Cities), or Si (excluding Eup/Myeon areas in the Metropolitan City) (excluding Eup/Myeon areas in the Eup/Myeon form under Article 3 (4) of the Local Autonomy Act), for which at least eight years have passed since the date of its acquisition, excluding the farmland for which one year has passed since its cultivation, which falls under any of the following subparagraphs: < Amended by Presidential Decree No. 17825, Dec. 30, 2002; Presidential Decree No. 18173, Dec. 30, 2003; Presidential Decree No. 18704, Feb. 19, 2005; Presidential Decree No. 19447, Feb. 9, 2006; Presidential Decree No. 19470, Apr. 28, 2006>

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

(c) 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.

1. The term "direct cultivation" in Article 69 (1) of the Act means that a resident is engaged in cultivating crops or growing perennial plants on his own farmland at all times or carrying out at least half of farming work with his own labor.

/ Farmland Act

Article 2 (Definitions)

The terms used in this Act shall be defined as follows:

5. The term "self-cultivation" means that a farmer engages constantly in the cultivation of crops or the culture of perennial plants in his/her own farmland, or cultivates or cultivates not less than a half of the same work with his/her own labor, or that an agricultural corporate body cultivates crops or cultivates perennial plants in its own farmland;

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