양도한 토지를 8년 이상 직접 경작한 사실에 대한 증명책임은 그 규정에 따라 양도소득세의 면제를 주장하는 납세의무자에게 있음[국승]
Examination-transfer-2018-0032 ( September 12, 2018)
The burden of proving the fact that the transferred land was cultivated directly for not less than eight years is the taxpayer who asserts exemption of capital gains tax under the relevant provision.
It is insufficient to recognize that he/she has been engaged in crops cultivation, etc. at all times or has cultivated or cultivated not less than half of farming works with his/her own labor, and there is no other evidence to recognize it.
Capital gains tax reduction or exemption for the self-employed farmland under Article 69 (1) of the Restriction of Special Taxation Act
2018Gudan12474 Revocation of Disposition of Imposing capital gains tax
AA, AB
○ Head of tax office
March 6, 2019
April 24, 2019
1. The plaintiffs' claims are dismissed.
2. The costs of lawsuit are assessed against the plaintiffs.
The Defendant’s imposition of KRW 236,395,430, respectively, of the capital gains tax belonging to the year 2016 against each of the Plaintiffs on September 4, 2017 shall be revoked.
1. Details of the disposition;
A. On July 29, 1997, Plaintiff SongB was the type of Plaintiff SongB, and they acquired 1/2 shares of each of the 1/2 shares of 00 square meters of 00 ○○○○○○○ Dong, 937-5 3,078 square meters, and 937-8 1,330 square meters of the same land (hereinafter collectively referred to as “instant land”) and transferred the same on August 5, 2016, and then reported capital gains tax by applying Article 69 of the Restriction of Special Taxation Act (amended by Act No. 14390, Dec. 20, 2016; hereinafter the same) for eight years or longer.
B. On September 4, 2017, the Defendant issued a correction and notification of KRW 236,395,430, respectively (including additional tax) of the transfer income tax for the year 2016 on the grounds that “the Plaintiff cannot be deemed to have cultivated the instant land directly.” (hereinafter “instant disposition”).
C. On March 13, 2018, the Plaintiff appealed and filed a request for examination with the National Tax Service on December 1, 2017, but a ruling dismissing the Plaintiff’s request was issued on September 13, 2018.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5 (including virtual numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 2, 3, and 8, the purport of the whole pleadings
2. Whether the disposition is lawful;
A. The plaintiffs' assertion
Although the Plaintiffs directly cultivated the instant land for eight years, the instant disposition taken on a different premise is unlawful as it misleads the fact and is unlawful.
B. Determination
(1) Article 69(1) of the Restriction of Special Taxation Act provides, “The tax amount equivalent to 100/100 of capital gains tax shall be reduced or exempted on the income accruing from the transfer of land prescribed by Presidential Decree, among land cultivated directly by a resident prescribed by Presidential Decree who resides in the seat of farmland for at least eight years by means prescribed by Presidential Decree.” Article 66(13) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 27848, Feb. 7, 2017) provides, “The direct cultivation in the manner prescribed by Presidential Decree” referred to in the main sentence of Article 69(1) of the same Act means that a resident is engaged in cultivating crops or growing perennial plants on his/her own farmland at all times or in cultivating or growing them with his/her own labor.”
In addition, the burden of proof on the direct cultivation of the land that had been transferred while residing in the farmland location for at least eight years lies in a taxpayer who asserts exemption of capital gains tax pursuant to the said provision (see Supreme Court Decision 94Nu996, Oct. 21, 1994).
(2) Therefore, in light of the following circumstances, which are acknowledged by the respective description of No. 4, 5, 6, 8, 10, 11, and 12 of the Act, and the testimony and arguments of Kim Jong-A, i.e., for the original purpose of acquisition: the Plaintiff Song-A was unable to engage in agriculture due to disorder caused by cerebral transfusion; it was recognized that the Plaintiff did not own own purchase of fertilizers and agricultural chemicals; and Song-A purchased a large number of real estate transactions while carrying out housing construction and sales business or real estate brokerage business during the retention period of the instant land; it was deemed that the Plaintiffs were able to use the said land as a site during the investigation, and it was difficult for the Plaintiffs to use the said land for agriculture; the Plaintiff Song-BB to use the said land as a retail business for 60 customers; the Plaintiff’s testimony and sale of the instant land to the Plaintiff, which appears to be the largest owner of the instant land; and the Plaintiff’s testimony and supply of the instant land to the Plaintiff by way of sale.
[Plaintiffs asserted that the Plaintiffs should be the special long-term holding deduction after the conclusion of pleadings, but the Plaintiffs appear to have failed to do so in general, and as long as the period of self-sufficiency cannot be specified, it is difficult to regard the instant land as non-business land]
(3) Therefore, the instant disposition based on the same premise is lawful, and the Plaintiffs’ above assertion is without merit.
3. Conclusion
Therefore, all of the plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.