8년 자경농지에 대한 양도소득세 감면[국승]
Cho High Court Decision 2009Da2959 (2010.05)
Reduction of or exemption from capital gains tax for self-farmland for 8 years;
In view of the fact that most of the land was not found in the aerial photography, it is difficult to deem that the aerial photography was directly done for not less than eight years in view of the fact that there was no trace of cultivation
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The disposition of imposition of capital gains tax of KRW 100 million for the year 2008 against the Plaintiff on May 11, 2009 shall be revoked.
1. Details of the disposition;
A. On May 23, 2008, the Plaintiff sold 1.4 billion won to KimA, 28-1, and completed the registration of ownership transfer on August 20, 2008, as well as 1319 square meters in BB Dong 19, 1024 square meters in 28, 1024 square meters in miscellaneous land and its ground buildings, which were owned by the Plaintiff.
B. Around September 3, 2008, the Plaintiff filed an application for reduction or exemption of capital gains tax of KRW 100 million pursuant to Article 69 of the Restriction of Special Taxation Act on the ground that the Plaintiff, among the above real estate, was aware of the size of 28-1 square meters in Jeju-si BB Dong 28-1 and 4483 square meters (hereinafter “instant land”) for more than eight years, upon reporting the imposition of capital gains tax on the Defendant following the sale
C. On May 11, 2009, the Defendant notified the Plaintiff of KRW 100 million of the transfer income tax belonging to the year 2008 (hereinafter “instant disposition”) without recognizing that the Plaintiff did not own the instant land for at least eight years.
D. The Plaintiff was dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on July 29, 2009, but was dismissed on February 10, 2010.
[Ground of recognition] Facts without dispute, Gap 1, 3 evidence, Gap 4-1, 2, and Eul 1, the purport of the whole pleadings
2. Determination on the legitimacy of the instant disposition
A. The plaintiff's assertion
The plaintiff cultivated walsculs to the land of this case from December 7, 1994 to 2003 where the plaintiff acquired ownership of the land of this case. From around 2004, the plaintiff removed walsculs to the land of this case and cultivated dry field crops such as wals, bean, etc. by creating dry field. From May 2006, the plaintiff argued to the purport that the disposition of this case which did not reduce or exempt transfer income tax pursuant to Article 69 of the Restriction of Special Taxation Act and Article 66 of the Enforcement Decree of the same Act was unlawful, even if the plaintiff directly cultivated walsculs to the land of this case for more than eight years until the transfer of the land of this case by installing a plastic greenhouse for the use of walsculs, N, etc.
(b) Related statutes;
It is as shown in the attached Table related statutes.
C. Determination
Article 69(1) of the Act on Special Cases Concerning Tax Restrictions, and Article 66(1) and (12) of the Enforcement Decree of the same Act provide that in order to be eligible for reduction or exemption of capital gains tax, the fact that the transferor has resided in a Si/Gun/Gu where the transferor’s farmland is located or in an area adjacent to a Si/Gun/Gu within which the transferor’s farmland is located and has cultivated directly for not less than eight years from the time of acquiring the relevant land until the time of transfer, and the direct cultivation refers to the fact that the transferor engages in cultivating crops or growing perennial plants on his own farmland or cultivating or growing them with his own labor not less than half of the farming works. Accordingly, in this case, as alleged by the Plaintiff, the question of whether the Plaintiff has cultivated the instant farmland shall be examined
According to Gap evidence 8-1, Eul evidence 1, Eul evidence 2, and Eul evidence 18, it is difficult to find that the plaintiff 2 used the plaintiff's own crypation in the farmland ledger from March 6, 1995 to the time of transfer of the land of this case. This objective data confirming the fact of self-defense by government offices is proved as sypological evidence. On the other hand, it is hard to find that Eul evidence 4, Eul evidence 5-1, 2, Eul evidence 6-1, 7, Eul evidence 8-1, and Eul evidence 6-1, and Eul evidence 1, Eul evidence 6-1, and Eul evidence 1, Eul evidence 2, and the plaintiff's 3-1, Eul evidence 6-1, which were found as sypological evidence 1, 201 to the point of view that the plaintiff's 3-1, which were located in the farmland of this case, were found as 5-1, and it is difficult to find that the plaintiff's own land of this case.
Furthermore, according to the evidence Nos. 1, 2, 3, and 9-1, 2, and 13 of the evidence Nos. 7-1, 1, 2, and 13, the Plaintiff may know the fact that the Plaintiff purchased fertilizers, seedlings, etc. from around 2006 and that the Plaintiff used groundwater from around October 18, 2006 at Jeju-si BBdong 28, 1024 square meters, and based on these circumstances, the Plaintiff was self-employed in the land of this case (However, the Plaintiff cannot be deemed to have been used in the land of this case; groundwater was used in the building of 1024 square meters at Jeju-si BBdong 28, 284 square meters at Jeju-si, and it is highly likely that the land of this case was not used on the land of this case). Ultimately, it is difficult for the Plaintiff to recognize the period as to the land of this case for approximately 3 years from around 2006 to August 208.
Therefore, since the transfer of the instant land is not subject to tax reduction and exemption, the instant disposition is lawful.
3. Conclusion
Thus, the plaintiff's claim of this case is dismissed as it is without merit.