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

The Defendant imposed on the Plaintiff on April 1, 2010 KRW 000,000 for the transfer income tax of 2008.

The cancellation shall be revoked.

The following facts are acknowledged in full view of the overall purport of the pleadings in each statement of Gap evidence Nos. 1 through 4 (including paper numbers):

[1]

O원고는 199〇 2. 9. 아버지 이BB으로부터 김포시 000 답 3，951㎡(이하 '이 사건 토지'라고 한다)를 증여받아 취득하였다가 2008. 5. 3〇 이를 민OO에게 양도하였다.

O원고는 2008. 9. 3〇 이 사건 토지의 양도에 관하여 2008년도 귀속 양도소득세 과세표준 예정신고를 하면서 원고가 이 사건 토지를 8년 이상 "직접 경작"하였다는 이유로 「조세특례제한법」 (2008. 12. 29. 법률 제9276호로 개정되기 전의 것， 이하 같다) 제 69조 제1항에 의한 양도소득세 감면을 신청하였다.

[2]

C. On April 1, 2010, the Defendant did not recognize the reduction or exemption of capital gains tax on the ground that the Plaintiff did not "direct farming" of the instant land, and imposed capital gains tax of KRW 000 on the Plaintiff for the year 2008 (hereinafter "the instant disposition").

The O Plaintiff appealed to the instant disposition and filed a request for a trial with the Tax Tribunal on May 6, 2010, and on June 28, 2010, the request for a trial was dismissed.

2. Relevant statutes;

A. Article 69(1) of the Restriction of Special Taxation Act (hereinafter referred to as "the Restriction of Special Taxation Act") provides that the tax amount equivalent to 100/100 of the capital gains tax shall be reduced on the income accruing from the transfer of land prescribed by the Presidential Decree among the land directly cultivated for not less than eight years by "resident prescribed by the Presidential Decree residing in the location of the land".

B. The former Enforcement Decree of the Restriction of Special Taxation Act prior to the amendment on February 9, 2006 (hereinafter referred to as the "Enforcement Decree prior to the amendment") provides that "resident prescribed by the Presidential Decree residing in the location of the farmland" in Article 66(1) of the Restriction of Special Taxation Act, and "resident prescribed by the Presidential Decree" in the main sentence of Article 69(1) of the Restriction of Special Taxation Act means a person who cultivates the farmland while residing in the Si, Gun, Gu area (No. 1) and in the Si, Gun, and Gu area (No. 2) adjacent to the

C. The Enforcement Decree of the Restriction of Special Taxation Act amended on February 9, 2006 (hereinafter referred to as the "Enforcement Decree of the Restriction of Special Taxation Act") provides that Article 66 (12) shall be newly established, and "direct cultivation" in Article 69 (1) of the Restriction of Special Taxation Act means that a resident is engaged in cultivating crops or growing perennial plants on his own land at all times or cultivating or cultivating at least half of them with his own labor (hereinafter referred to as "Article 66 (12) of the Restriction of Special Taxation Act").

D. Article 10 of the Addenda to the Enforcement Decree of the Amendment, and the provision of this case on February 2, 2006, the enforcement date of the Enforcement Decree of the Amendment.

9. 후 양도하는 분부터 적용한다고 규정하였다. 한편으로 위 부칙 제23조는， 이 사건 조항을 적용함에 있어서 위 시행일 전에 상속받은 농지로서 2008. 12. 31.까지 양도하는 경우에는 이 사건 조항에 불구하고 종전의 규정에 의한다고 규정하였다. 이 사건 조항은 원고가 이 사건 토지를 양도한 2008. 5. 3〇 당시에도 그대로 유지되었다.

3. The provisions of this case

A. The plaintiff's assertion

(1) 원고는 199〇 2. 9. 이 사건 농지를 취득한 후 원고의 계산과 책임 아래 경작 하여 1998. 2. 9.경 조세특례제한법 제69조 제1항 소정의 8년 이상 "직접 경작"의 요건을 충족하였다. 그런데 2006. 2. 9.의 개정 시행령이 이 사건 조항을 신설하여 "직접 경작"의요건을 농작업의 2분의 1 이상을 자신의 노동력에 의하는 것 등으로 강화하면서 이 사건 조항을 개정 시행령의 시행일인 2006. 2. 9. 후 양도하는 분부터 적용한다고 규정하였다. 이러한 규정은 이미 완성된 사실관계에 대하여 신설된 법령을 적용하는 부진정 소급입법에 해당하는 것으로서 원고의 신뢰이익을 침해하고 소급과세금지의 원칙에 반 하므로， 이 사건 토지의 양도에 관하여는 이 사건 조항이 적용될 수 없다.

(2) The Plaintiff acquired the instant land by donation from father BB, and the Civil Act or the Tax Act equally treats the instant land as a donation and inheritance, and the Plaintiff can be deemed to have succeeded to the instant land from father B. Accordingly, the instant provision is not applicable to the transfer of the instant land pursuant to Article 23 of the Addenda to the Enforcement Decree of the Amendment, and the previous provision should be applied.

B. Determination

(1) Capital gains tax is imposed on capital gains from the transfer of assets, and such transfer is practically transferred to AA, and the laws and regulations at the time of transfer are applied to capital gains tax, i.e., when the assets have been actually transferred at the time of transfer at the time of transfer at the time of transfer at the time of transfer. In addition, unless there are special provisions in the Restriction of Special Taxation Act and its Enforcement Decree, the aforementioned Acts and subordinate statutes at the time of transfer shall apply. Therefore, even if the amended Enforcement Decree newly established the instant provision and strengthens the requirements for “direct farming” from the transfer after February 9, 2006, which is the enforcement date of the amended Enforcement Decree, to the effect that the provisions in this case are applied to one half or more of the farming work, and it cannot be deemed as a retroactive legislation or a violation of the Plaintiff’s trust interests, as

또한 조세특례제한법 제69조 제1항은 8년 이상 직접 경작한 토지를 양도소득세 면제 대상으로 선언하면서 그 구체적인 범위를 대통령령에서 정하도록 위임하였고， 그 시행령 제66조 66조 제4항 각 호에서는 8년 이상 자기가 경작한 농지 중 제외되는 대상을 규정하고， 이 사건 조항에서는 「농지법」 제2조 제5호의 자경 규정과 동일한 내용으로 "직접 경작"의 의마를 구체화하여 규정한 것이므로， 이 사건 조항이 위임 근거 규정이 없다거나 위임입법의 한계를 벗어난 것으로서 무효의 규정이라고 할 수 없다(대법원 2010. 9. 3〇 선고 2010두8423 판결).

(2) Under the principle of no taxation without law, or under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the legal text, barring any special circumstance, and it shall not be permitted to expand or analogically interpret without any justifiable reason, and in particular, it is in line with the principle of no taxation without law to strictly interpret the provisions that are clearly preferential provisions among the requirements for reduction and exemption (see, e.g., Supreme Court Decision 2006Du8969, Feb. 15, 2008). Although the Civil Act provides that the provision on legacy does not apply mutatis mutandis to a private gift effective due to the death of a donor of this Act, it is not applicable mutatis mutandis to the nature of a private gift, and the Local Tax Act merely includes legacy and universal legacy with respect to acquisition tax, as argued by the Plaintiff, and thus, it cannot be deemed that the Civil Act or tax law equally treats “prior donation” and inheritance as alleged by the Plaintiff, and the interpretation that prior gift is contrary to the principle of no taxation without law or fair taxation.

(3) 그렇다면 원고가 2008. 5. 3〇 이 사건 토지를 양도한 것에 관하여는 이 사건 조항이 적용된다고 할 것이므로， 이 사건 조항이 적용될 수 없다고 하는 원고의 이 부분 주장은 이유 없다.

4. Direct cultivation;

A. The plaintiff's assertion

Even if the instant provision is applied to the transfer of the instant land, the Plaintiff, as the Plaintiff cultivated rice with its own labor, at least 1/2 of the farming industry, such as pesticide cycle, water atmosphere, etc. from the instant land, and constitutes “direct cultivation” of the instant land. However, the Defendant issued the instant disposition on the ground that the Plaintiff did not “direct cultivation” of the instant land, which was unlawful.

(b) Fact of recognition;

The following facts are recognized in full view of the statements in Gap 5, 6, 9, 10, 21 through 23, 27, 28, and 5 through 9, and 13 through 22 (including household numbers), the testimony of witnesses of the first instance court, YO, PO, and O KimO of the first instance court, the Commissioner of the Statistics Korea of the trial court, and the Director of the National Agricultural Research and Development Institute of Korea of each fact-finding with respect to the whole arguments.

[1]

〇원고는 199〇 2. 29. 이 사건 토지인 김포시 0000 답 3，951㎡를 취득하였다가 2008. 5. 3〇 이를 양도하였는데， 원고의 주민등록상 거주지는 〇 1991. 8. 11. 부터 1993. 11. 13.까지는 김포시 00000， 〇 그 다음날부터 1995. 10. 22. 까지는 위 대곶면 0000， 〇 그 다음날부터 1995. 10 24.까지는 김포시 000000，〇 그 다음날부터 1997. 4. 30. 까지는 위 대곶면 00000， 〇 그 다음날부터 이 사건 토지의 양도시까지는 위 00000호이었다.

〇 원고는 1992. 10 21. 인천 부평구 0000에 있는 'EEEE 테크놀로지 주식회사'(원고가 입사할 당시 상호는 'EE자동차 주식회사'이었으나 이후 현재 상호로 변경되었다， 이하 'EE'라고 한다)에 입사하여 2007. 10. 31.까지 회계부에 소속되어 근무하였다.

C. According to the earned income data of the National Tax Service, the Plaintiff received approximately KRW 000 in annual salary in 1993, including bonuses, and annual salary increase, and received approximately KRW 000 in annual salary in 2006.

According to the OE’s payment details of overtime allowances, and from October 2002 to March 2005, the Plaintiff worked more than the minimum of 30 hours to 54 hours per month and paid overtime allowances from March 2005 to October 2007.

The distance from the above residence of the plaintiff to EE is about 24.1km, and the distance from the above residence of the plaintiff to the land of this case is about 17.2km.

[2]

Owestincheon-do, U.S., a public official affiliated with the POO, made on November 24, 2009, the local personal seal tag of the instant land prepared as of November 24, 2009, and the results of the on-site verification on November 24, 2009, and the CivilO, who purchased the instant land from the Plaintiff, buried the instant land used as a previous rice field, and indicated that the instant land was used as an orchard for culture and orchard, and that the instant land was cultivated by POO by surrogate for up to 2006, and that the POO stated that the instant land was made by proxy by proxy in 207 (No. 6. evidence).

O, on May 31, 201, 201, Kimpo-si, Jeju Jeju Jeju District, which had cultivated the argument 000 located in the land adjacent to the land of this case, was aware that the plaintiff had not been engaged in farming and fishing in the land of this case during the farming and fishing village in the above argument, and that PO had been living in the land of this case for not less than 10 years. On November 2009, PO drafted a confirmation letter (No. 13-1 and 2) that Parkpo-ri had been living in the land of this case.

A witness at the first instance trial testified that he, while doing the farming work from 196 to 2008, he by proxy, the farmland owned by another person was cultivated, the size of which is about 7,00 to 8,000, and almost every year, he did not by proxy or direct cultivation on the land in this case at the request of the plaintiff, but at the request of the plaintiff, he did not by proxy by proxy or direct cultivation, he was in the records of doing the farming work using the machines owned by himself, and specifically, there was a string, in which he used the machines owned by himself, has been harvested, has been harvested, has been harvested in cash, and he has been harvested as a compacter, and there was a little amount of 00 won for the farming work, and has been taken by rice (the same shall apply to the contents of evidence A 21).

OO of the witness of the first instance court, and the plaintiff returned to the direction where the land of this case was located in around 1997, and the plaintiff was also deaf, and the plaintiff was also deaf, and the tax official was aware that the plaintiff had been working in EE until the last day (round November 2009), and that he tried his parents at the end of the week.

O O 1st instance trial witness Lee, the plaintiff frequently shown that he was engaged in farming work with his father Lee B, his father after his retirement, and the two are aware that he was more engaged in farming work, and this BB was able to do so twice a year, and the large day and rice beer shall be the plaintiff, and BB shall be the plaintiff, and BB shall be the late in the following, and this study examined the status of crops in the plaintiff's arguments.

[3]

〇1999. 3. 5. 최초로 작성된 원고의 농지원부에는 원고가 이 사건 토지의 소유자로서 이 사건 토지를 비롯하여 3필지 합계 11，742㎡{= 김포시 대곶면 OOO 답 3，951 ㎡(이 사건 토지) + 같은 리 953 답 3，937㎡ + 같은 리 1091 답 3，954㎡}의 농지 에서 벼농사를 자경하고， 원고에게 이 사건 토지 등 위 세 필지의 토지를 증여한 아버지 이BB도 10개 필지 합계 25，229㎡의 농지에서 자경하는 것으로 기재되어 있다.

〇원고는 김포시로부터 이 사건 토지를 비롯하여 3필지 합계 11，742㎡에 대하여 쌀소득등 보전 직접지불금으로 2001년 000원， 2002년 000원， 2003년 0000원， 2004년 000원， 2005년. 11. 25. 0000원， 2006년 000원， 2007년 000원， 2008년 000원을 각각 받았다.

〇원고는 이 사건 처분에 대하여 심사청구를 하면서 부모와 함께 이 사건 토지에서 논농사를 하였다고 주장하였다.

[4]

O벼농사의 농작업은 「법씨 구입， 소독 → 묘판 및 옹상작업 → 파종 → 경운{가리작업 : 기경 - 기비(비료작업) - 경지 또는 정지(로터리)} → 물대기(관수작업) → 균평작업 → 모내기(이앙) → 관리(시비， 제초， 병충해방제 이외의 모든 관리작업)， 시비(비료작 업)， 제초작업， 병충해방제(농약 살포) → 수확(탈콕， 콤바인작업 등) → 운반 → 건조」 순으로 진행되고， 그 외 기타 작업(생산에 직접적으로 기여한 소규모 배수로 및 농로작 업， 물대고 빼기， 추비， 웃거름 등)도 필요하다.

At the same time, it is confirmed that the crops, the crops, the crops, the compacts, the crops, and the crops are used in farming, and the crops are found to be at least 9% of the crops in rice farming due to the mechanization of farming works.On the other hand, water can automatically enter the crops if the facilities are well installed to some extent.

According to the results of the study of the use status of agricultural machinery from 1,490 extracted as samples from national farmers in 2010 (the evidence No. 28, the actual use status of agricultural machinery and the mechanization rate of agricultural works), and the mechanicalization rate of main agricultural works from 209.9% for agricultural machinery, 9.8% for agricultural operations, 9.3% for agricultural operations, and 9.3% for crop control operations, and 1,548 for 1,548 for 1,490, 710 for black, and 58 for bits, and 201 for grain, and 245 for agricultural products, and 60 for agricultural use, and 41 for agricultural cutting.

The average annual labor input time (including the hours of use of agricultural machinery, and excluding the hours of entrusted farming) per 10a ( = 1,000 square meters) that is put into farming operations for rice farmers in front of the past year is 28.57 hours in 201, 2002, 26.99 hours in 2002, 203, 21.66 p. 2004, 21.81 p. 85 p. 2005, 17.64 p. 207, 2007 and 16.16.15 p. 208, 209, and 2014.23 p. 203 hours from 203.

Along with the reduction of the annual labor input time due to the reduction of the labor input time due to the mechanization of agricultural works as above and the relative reduction of agricultural income, agriculture concurrently engaged in a job different from the agricultural company is increasing.

A farmer who does not own or own all agricultural machinery necessary for farming operations in all farmers who own rice with a difference in the farmland area owned or cultivated by each O farmer and with a high-priced relationship with agricultural machinery, and therefore, a farmer who does not own agricultural machinery borrowed agricultural machinery from a farmer who owns agricultural machinery to use it, and a farmer who merely lends the agricultural machinery to another farmer who owns the agricultural machinery, rather than directly uses the agricultural machinery, and the method of using all those who operate the agricultural machinery and the agricultural machinery and paying the cost for it is much larger.According to statistics published by the Statistics Korea, the rent rate from 2004 to 2010 from 42.3% to 47.9% to 2010 to the minimum amount of 42.3% to 2010.

C. Determination

(1) The circumstances examined by comprehensively taking account of the above facts admitted and the evidence and relevant statutes are as follows.

• The Plaintiff donated the instant land from his father BB on February 9, 1991 and May 2008

30. Until transferring this to others, the plaintiff was residing in the city where the farmland was located for about 17 years, and on the farmland ledger, the plaintiff was marked as being scambling the land in this case, and scams in the first instance court where the plaintiff resides in the vicinity of the land in this case, and scamblings, 'in-house or dry field (O testimony), 'cambling', 'in-house or dry field (O testimony), 'water spraying', 'water dusting', and pesticide cycle, etc. (O testimony) and 'in-house-scambling in the vicinity of the farm, it is possible for the plaintiff to actually perform agricultural work in the land in this case owned by him to a certain extent.

• Is the witness of the first instance trial, and '8-9 before '8-9, the plaintiff directly scambling.' or

'The plaintiff testified 5-6 time before 1 year that 'the plaintiff was working in the land in this case', 'the plaintiff did not come into the discussion, and it was judged that 'the plaintiff did not know about whether 'the plaintiff was working in the land in this case', 'the plaintiff was working in the field near the scambling, and 'the plaintiff did not know about the kind and quantity of the farming work in this case, the working method, the area of the work, the labor force time, etc.' In addition, 'YO' was not known about 'the plaintiff was working in the EE' or 'the plaintiff was thought to help the plaintiff work in the weekend, or 'the plaintiff was working in the EE', or 'the plaintiff was thought to know about 'the first issue is difficult to know about 'the first issue before 'the plaintiff cultivated it', and it is difficult to recognize 1/2 or more of the labor force in this case' and 'the testimony in this case was made by 'the plaintiff'.

• The witness at the court of first instance testified that "I would like to use the land in this case for one's own agricultural machine upon request by the plaintiff, and harvested as a compact," and that "I would like to see 'the plaintiff' in the land in this case, 'the 'the 'the 'the 'the 'the 'the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' ' the ' the ' ' ' ' ' ' ' the ' ' ' ' the ' the ' the ' ' the ' the ' ' the ' ' the ' the ' ' the ' the ' ' the ' ' the ' and ' the ' ' the ' ' the ' and ' ' the ' ' the ' ' the ' ' and ' ' the ' ' ' ' '. '. ' the ' the ' the ' ' ' ' the ' ' '.

• Rather, the Plaintiff’s father Lee B also owned farmland of 25,229 square meters in the vicinity of the instant land, and Lee OO witness of the first instance trial testified to the effect that the Plaintiff and his father B were engaged in rice farming in the instant land at the time of the request for the examination of the instant disposition, as seen above, and the Plaintiff also testified as such at the time of the request for the examination of the instant disposition. In light of the fact that the Plaintiff’s direct cultivation evidence and the transaction date (Evidence No. 7) and the transaction details (Evidence No. 8 evidence No. 8) of the tax-free petroleum management ledger (Evidence No. 8) and the document No. BB is not the Plaintiff but the Plaintiff’s personal information column, it cannot be ruled out that the Plaintiff could have carried out part or considerable part of the farming work necessary for the cultivation of the instant land, and that the Plaintiff’s owner’s own cultivation and the Plaintiff’s own cultivation of the instant land should be excluded from the Plaintiff’s “one-half of the instant land’s own own cultivation and its family members.”

• Since Kimpo-si, Jeju Jeju Jeju Dog 000 area adjacent to the land in this case, Kimpo-si, and Kimpo-si, the plaintiff prepared a letter of confirmation that YO had no farming house in the land in this case for more than 10 years, and YO also stated the statement of YO that YO had cultivated the land in this case by proxy, and YO testified testified that YO had engaged in the farming of rice, fry, and harvest, etc. in this case's land, it is difficult to conclude the contents of the above letter of confirmation and the statement of local confirmation inspection clothes, and considerable parts of the farming work carried out in the cultivation of the land in this case are likely to have been carried out by POs, not the plaintiff, in judging whether the plaintiff had labor force in this case. This part of YO's farming work should be excluded, and not less than 1/2 of the plaintiff's own agricultural work.

• The plaintiff asserts that the time of the farming operation conducted using the agricultural machinery, such as the statistics of the Statistics Korea or the results of the study of the National Agricultural Research Institute of Korea, and the track, Empics, Empics, and compcoms, which were conducted by Park O, are half of the total annual working hours, while the remainder of the working hours directly conducted by the plaintiff is equal to half of the total working hours. However, the statistics or the results are excluded from the agricultural operation hours under the entrusted management, and it is not easy to see that the above statistics or the results of the survey are about the total working hours under the entrusted management, and the above statistics are calculated the annual average working hours by simply adding the annual working hours for each farming operation, and the above results are based on the rate of the use of the agricultural machinery and the area of the work for each farming operation, and it is difficult to apply the above statistics or the results of the survey directly by the plaintiff.

• It is difficult to view that many of the plaintiff's labor in the atmosphere of water is put into the atmosphere of water because water is well installed in the past, so that water can automatically come into the facility, and it is difficult to view that the plaintiff's labor has been put into the atmosphere of water during the agricultural work that the plaintiff directly carried out.

• The Plaintiff asserts that he directly cultivated the instant land in its name does not own any farming machinery in the name of the Plaintiff, and appears not to have acquired the membership of the agricultural cooperative, and did not submit as evidence any fertilizer, pesticide, seeds, and farming equipment purchased in the name of the Plaintiff.

• The Plaintiff, as well as the Plaintiff, borrowed and used high-priced agricultural machinery, which is the same as biter or compact, but his father Lee B purchased and used in the name of this B. However, as seen earlier, this BB is growing farmland in the size of 25,229 square meters, and there is no evidence to prove that the Plaintiff provided funds to purchase fertilizers, etc. necessary for rice farming houses in the instant land to thisB, it is difficult to accept the Plaintiff’s assertion, and rather, this B seems to have been involved in rice farming in the instant land, and in this situation, it is difficult to recognize the credibility of the OO’s confirmation (Evidence 12) that OO used the agricultural machinery jointly by OO.

• While the Plaintiff received direct payments for preserving rice income, etc. from Kimpo-si (excluding the year 2005) from Kimpo-si from 2001 to 2008, “direct farming” under the Rice Income Preservation Act at that time was not stipulated as the requirements for direct payments, so the Plaintiff’s “direct farming” cannot be presumed solely based on the fact that the Plaintiff received the said direct payments.

(2) The facts that constitute the requirements for reduction or exemption of capital gains tax must be proved by the claimant, and considering the above circumstances, it is difficult to recognize that the plaintiff, as provided in Article 69(1) of the Restriction of Special Taxation Act, "it is hard to recognize that the plaintiff had cultivated the land in this case for 1/2 or more of the "a farmer's work" as provided in the provision of this case because the plaintiff's direct cultivation of the land in this case is "a farmer's own labor force" and "a farmer's direct cultivation of the land in this case is hard to recognize," and there is no other evidence to acknowledge that the plaintiff had cultivated the land in this case for 8 years or more," as provided in Article 69(1) of the same Restriction of Special Taxation Act.

(3) Therefore, since the Plaintiff is not deemed to have carried out direct farming, the transfer income tax is not reduced or exempted, and the instant disposition imposing the transfer income tax on the Plaintiff for 2008 following the transfer of the instant land is lawful.

5. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case should be dismissed due to the lack of reason, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed, and it is so decided as per Disposition.