농지를 3년 이상 자경하였다고 인정할 수 없음[국승]
No farmland shall be deemed to have been self-arable for at least three years;
In light of the fact that a third party applied for an agricultural loss compensation for farmland and received compensation, and that the Plaintiff was subject to the withholding of labor income tax, it is reasonable to deem that the Plaintiff did not self-contribute the farmland for not less than three years before transferring the farmland. As such, it does not constitute the subject of non-taxation
Article 89 of the Income Tax Act
208Guhap1243 Revocation of Disposition of Imposing capital gains tax
Hongx
O Head of tax office
April 29, 2009
May 20, 2009
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The defendant's disposition of imposition of capital gains tax of KRW 183,550,490 against the plaintiff on March 3, 2008 (hereinafter referred to as "the disposition of this case") is revoked (the "the disposition of this case" recorded in the complaint seems to be a clerical error).
1. Details of the instant disposition;
A. On March 19, 2002, the Plaintiff completed the registration of ownership transfer on the ground of sale on the 16th day of the same month with respect to the instant farmland (hereinafter referred to as “the instant farmland”) with respect to Gwangju-si 235 Do-dong 235 Do-dong 2,157 m2, and thereafter, the registration of ownership transfer in the name of the Korea National Housing Corporation was cancelled on the ground of the acquisition of the public land on November 10, 2005 (hereinafter referred to as “instant acquisition”) on the instant farmland.
B. The plaintiff on December 29, 2005, after the registration of ownership transfer was made in the name of the above Korea National Housing Corporation.
With respect to the 6,020 square meters prior to the 167-10 m20 m20 m2 in Sii-si, Sii-si, the registration of ownership transfer was made on the 20th day of the same
C. On June 30, 2006, the Plaintiff reported the transfer income tax on the acquisition by transfer of the farmland of this case to the Defendant to the effect that it is exempt from taxation as "income from substitute land for farmland under Article 89 subparagraph 4 of the Income Tax Act (wholly amended by Act No. 7837 of Dec. 31, 2005). However, the Defendant issued the instant disposition on March 3, 2008 on the ground that the Plaintiff did not directly cultivate the farmland of this case and newly acquired farmland.
D. On June 10, 2008, the Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on June 10, 2008, but the Tax Tribunal dismissed the Plaintiff’s appeal on September 3, 2008.
[Ground of recognition] Facts without dispute, Gap evidence 1, 3, Eul evidence 5-1, 2, Eul evidence 6-2, Eul evidence 9-1, 2
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The Plaintiff purchased the farmland of this case on March 14, 2001 and directly cultivated the farmland of this case with the assistance of JA from that time, and the Defendant issued the disposition of this case on the ground that the Plaintiff did not directly cultivate the said farmland even though the newly acquired farmland was cultivated, and thus, the disposition of this case was unlawful.
B. Determination
(1) The purport of the provision that imposes capital gains tax on the substitute land of farmland is to protect farmers through free substitution and guarantee of farmland, or to develop and encourage agriculture. Therefore, the acquisition and sale of farmland by self-employed farmers are exempt from capital gains tax if it is to substitute land for the purpose of farming necessity (see Supreme Court Decision 2002Du5924, Sept. 5, 2003) and Article 153(2)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254, Dec. 31, 2005; hereinafter referred to as the "Enforcement Decree"). Accordingly, first of all, it is about whether the Plaintiff has cancelled the farmland of this case for not less than three years (hereinafter referred to as the "Plaintiff of this case").
(2) According to the Plaintiff’s evidence consistent with the Plaintiff’s Note 2, 6, 7 through 11 (including each number), and 6-2 of the evidence Nos. 6-2, and 5 of the witness Jin-A, it is not reasonable to recognize the Plaintiff’s Note 5-1 and 2, and there is no other evidence to acknowledge it. Rather, according to the Plaintiff’s evidence Nos. 3, 4-2, 3-1 through 6 of the evidence No. 3, and 7-1 through 6 of the evidence No. 7, the Plaintiff’s assertion that the Plaintiff purchased the Plaintiff’s farmland from the Plaintiff on April 7, 1997 and the Plaintiff’s assertion that the Plaintiff received the Plaintiff’s agricultural income from the Plaintiff on March 26, 201, 200, 6-1 and 6-2 of the record No. 9 of the Plaintiff’s entry that the Plaintiff had received the Plaintiff’s agricultural income from the Plaintiff on the date of the Plaintiff’s purchase of the farmland.
3. Conclusion
Therefore, it is necessary to further examine whether the Plaintiff satisfies the remaining requirements for non-taxation of capital gains tax under Article 153(2) of the Enforcement Decree, and as long as the Plaintiff transferred the farmland of this case without any need to examine whether the Plaintiff satisfies the requirements for non-taxation of capital gains tax, the Plaintiff’s claim of this case is dismissed as it is without merit