Suwon District Court 2009Guhap8459 ( October 15, 2010)

early 2009 Heavy0190 (2009.08)

Whether or not farmland has been cultivated directly;

In light of the circumstances that do not submit objective and direct data, such as insertion, improvement, and expansion necessary for the direct cultivation of the previous farmland and substitute farmland, the purchase details of agricultural equipment or farming materials, sales details of products, etc., or the use of credit cards, etc. accompanying long-term dwelling at the address of this case, it is difficult to view that the farmland was directly

The contents of the decision shall be the same as attached.

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked, and the defendant revoked the disposition of imposition of capital gains tax of KRW 154,269,510 for the plaintiff on December 4, 2008.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be recognized by comprehensively considering the whole purport of the pleadings in each entry in Gap evidence Nos. 2, 6, 16, 18, 20, and Eul evidence No. 1 (including each number):

A. On June 26, 1987, the Plaintiff purchased the same 321-2 34 m2 m2, 321-4 m2, 321-4 m2, and the same 199 m2 (hereinafter collectively referred to as “previous farmland”), and the previous farmland was the acquisition of public land on December 13, 2007 (the date of December 6, 2007), and the ownership transfer registration was completed in the future of the Korea Land Corporation.

B. On December 4, 2007, the Plaintiff acquired 374-5 △△△△△△△, 2,196 m2,196 m2 and 374-6 m2,360 m2,360 m2 (hereinafter collectively referred to as “alternative farmland”).

C. On March 31, 2008, the Plaintiff reported the acquisition of substitute farmland to the Defendant as non-taxation at the time of filing a preliminary return of capital gains tax on the previous farmland.

D. On December 4, 2008, the Defendant decided and notified the Plaintiff of KRW 154,269,510 of the capital gains tax reverted to year 2007 (hereinafter “instant disposition”) by deeming that it does not meet the requirements for reduction and exemption of capital gains tax due to substitute land for farmland.

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on January 14, 2009, but was dismissed on June 8, 2009.

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

The plaintiff asserts that the transfer income of the previous farmland is subject to reduction and exemption of transfer income tax due to the own farmland in Article 70 of the Act on Special Cases concerning Taxation, but the disposition of this case on a different premise should be revoked unlawfully, in spite of the fact that the transfer income of the previous farmland is subject to reduction and exemption of transfer income tax due to the own farmland in Article 70 of the Act on Special Cases concerning Taxation, and thus, the disposition of this case on a different premise should be revoked.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Requirements and criteria for reduction or exemption of capital gains tax due to substitute land for self-arable farmland

(A) According to Article 70(1) of the former Restriction of Special Taxation Act (amended by Act No. 921 of Jan. 1, 2010) and Article 67(1), (2), and (3)1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 20620 of Feb. 22, 2008), where a person who resided in the former location of farmland for not less than three years and cultivated the farmland while residing in the new location of farmland for not less than three years after acquiring another farmland within one year from the date of transfer, and where the area of the newly acquired farmland exceeds half of the area of the farmland to be transferred or a third of the value of the farmland transferred is 1/100 of the transfer income tax on the transfer income accruing from substitute land of farmland.

(B) The purport of the provision that reduces capital gains tax on the substitute land of farmland under the Restriction of Special Taxation Act is to protect a self-employed farmer and encourage agriculture by guaranteeing free substitution of farmland. Thus, the object of reduction or exemption should be limited to the case where the farmland acquired by a self-employed farmer is to be substituted for cultivation necessity. Therefore, the requirements for reduction or exemption of capital gains tax on substitute land of farmland are farmland. ① The requirements for reduction or exemption of capital gains tax on substitute land of farmland shall be farmland, ② the previous land and new land shall be farmland shall be farmland, ② the former land and new land shall be cultivated directly while residing in the previous location for three or more years, and the farmland shall be cultivated directly by residing in the new location for three or more years. ③ The period between the transfer date of the previous land and the acquisition date of the newly acquired land shall be within one year.

(C) At this time, the term “direct cultivation of farmland” refers to a variety of cases where a resident engages in the cultivation of crops or the growing of perennial plants on his own farmland at ordinary times (in the place and time of farmers and farmland), or cultivates or cultivates not less than half of farming work with his own labor (in the direct labor force of a farmer), and in order for the transferor of farmland to have the transfer income tax on income arising from substitute land of farmland reduced or exempted, the above assertion is required to prove all of the requirements of the farmland (see, e.g., Supreme Court Decision 92Nu1893, Jul. 13, 1993).

(2) Facts recognized

The following facts are not disputed between the parties, or each testimony of Gap evidence 8 through 22, Gap evidence 24 through 28, Gap evidence 32, Gap evidence 35 through 44 (including each number), Eul evidence 1 and 2, and Eul evidence 1 and 2, and witness testimony of the first instance court, EB, KimCC, and party witness D, KimCC, and KimCC.

(A) The Plaintiff’s resident registration change details and family relation

The Plaintiff: (a) on March 13, 1982, 1, 1, 273, 273, 2, 896-2, 896-2, 502, 3, 737, 198, 198, 200, 200,000,000,000,000,000,0000,000,000,000,000,000,000,000

아파트 305동 801호, ④ 2001. 3. 27. □□ □□구 □□동 1279 □□1차 ♧♧아파트 102동 1505호, ⑤ 2006. 7. 10. ○○시 ◁◁구 ◁◁동 216-1(이하 '이 사건 주소지'라 한다)로 주민등록법상 순차로 전입신고를 마쳤다. 한편, 원고의 처와 자녀들은 2001. 3. 27. 위 □□동 아파트에 전입신고한 이래 계속하여 그 곳에 거주하고 있고, 2009. 12. 4.에 이르러 원고는 그 처와 협의이혼 하였다.

(B) The plaintiff's occupation and income

원고는 조경사로서 1989년 ◇◇시 소재 ◇◇산 주식회사에 근무하였고 1994년경 주식회사 ▲▲에 근무하면서 2,800만 원의, 1996년경 주식회사 ●●조경에 근무하면서 2,000만 원의, 1998년경 ■■조경에 근무하면서 2,900만 원의, 2003년경 주식회사 ▼▼화에 근무하면서 2,800만 원의 각 급여를 지급받았다.

(C) Relevant data

1) The Plaintiff and the Korea Land Corporation entered into an agreement on the indemnity for obstacles on March 28, 2007, stating that “the Korea Land Corporation shall pay KRW 27.5 million as compensation for removal of fla trees, flaz trees, flaz trees, standard trees, mulberry trees, mulberry trees, flazine trees, etc., which are planted in farmland 321-4, 00 ○○○○○-dong, 321-4, among previous farmland.”

2) ○○시 ◁◁구청장이 2007. 12. 12. 발급한 농지원부에는 종전 농지의 지목은 '답'이고 주재배 작물은 '관상수'이며 원고가 종전 농지를 자경한다(대체 농지는 '휴경' 상태)라고 기재되어 있다.

3) ○○시 ◁◁구청장이 2008. 8. 22. 발급한 농지원부에는 대체 농지의 지목은 '답'이고 주재배 작물은 '벼'이며 원고가 대체 농지를 자경한다고 기재되어 있다. 원고는 2009. 7. 29. 대체 농지 소재지인 △△농업협동조합에 조합원으로 가입하였고, 2009. 10. 13. 220여 만 원 상당의 쌀을 농업협동조합에 판매하였다.

(D) On-site verification by the Defendant

A public official belonging to the defendant visited the domicile of this case at around October 2008 and confirmed on-site, and the report prepared at that time refers to the wife EE of thisB who actually resides in for about 20 days in one month of the plaintiff and leased KRW 1,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,000,00,000,000,00,000,000,00,000,00,00,00,00.

(e) Lease-related

1) On July 1, 2006, the Plaintiff drafted a written agreement (Evidence 10,000,000,000 won (including public charges) stating that the Plaintiff shall rent one column for the said house from B to B, but shall be converted into two years after the lapse of such two years. On October 20, 2008, the Plaintiff prepared a lease contract (Evidence 11) that leases ten million won for the said house to 10,000 won (including public charges) and obtained a fixed date, and the Plaintiff paid KRW 10,000,000 to B on October 20, 2008.

2) AB appeared as a witness in the first instance trial and testified that “Agreement (Evidence A 10)” was “(Evidence A) was written directly by the Plaintiff on the job of the Plaintiff except for its signature.”

3) The KimCC testified that “A person was present as a witness in the first instance and the first instance court, and that he was given testimony that “A person was confirmed and sealed in advance by thisB.”

(f) Details of identification of local residents

1) Sung FF, a resident of ○○○-gu, ○○○○-dong, prepared a written confirmation stating that “the Plaintiff, after acquiring the previous farmland on June 1987, she directly cultivated rice farmers and cultivated them, and she directly cultivated the landscape trees from around 2007 after planting them as dry field 10 years prior to 10 years.”

2) ○○사 ◁◁구 ◁◁동 주민인 염GG, 조HH, 최II과 ◁◁3동 통장인 조AA는 원고에게 '원고가 2006. 7. 10. 이 사건 주소지로 전입한 이래 계속하여 거주하고 있다'는 취지의 확인서를 작성해 주었다.

3) The letter of confirmation of cultivation drawn up by the Seo-J, the head of △△△ City, △△-Eup, stated that the Plaintiff harvested rice from rice farming in the substitute farmland in 2008.

4) In the first instance trial, the MediationA testified that “A was present as a witness and testified to the extent that it was 3-4 times per year with the Plaintiff.”

5) Doddd has appeared as a witness in the trial, and the plaintiff testified that the plaintiff had been directly engaged in rice farming after acquiring the previous farmland around June 1987 and cultivated the landscaped trees after planting them.

(3) Whether the Plaintiff, while residing in the previous farmland and substitute farmland for more than three years, has cultivated it

(A) The following circumstances are revealed in light of the aforementioned evidence as stated in Gap evidence Nos. 23-1 through 47, Eul evidence Nos. 4, 7, and 8, and the purport of the entire pleadings.

① On March 27, 2001, when the Plaintiff moved into, and resided with, his family in, the apartment complex located in △dong-dong-dong, and around 2004, while planting landscape trees on the previous farmland, it is difficult to find any reasonable grounds to make a move-in report independently at the address of this case, away from his family on July 2006. The Plaintiff asserted that the Plaintiff resided in the instant domicile by separateing his wife from his wife at the time of the instant moving-in report. However, the Plaintiff’s divorce with his wife on December 4, 2009 can not be readily concluded that the Plaintiff had already resided separately from the said apartment complex at the time of the said move-in report. As such, it is difficult to deem that the Plaintiff actually resided in the room that the Plaintiff leased.

② The Plaintiff’s argument that the Plaintiff leased from B is difficult to accept the Plaintiff’s assertion that the Plaintiff, who had property to a certain extent, was leased for the actual purpose of residence due to the Plaintiff’s failure to care for an independent kitchen that could have been cooked up to 2-3 square meters. At the time of the on-site verification by the public official affiliated with the Defendant, all of the Plaintiff’s equipment, kitchen instruments, clothes, etc. were not discovered at the address of this case.

③ 위 현지 확인시 이BB의 ◁◁ 이EE는 원고가 임대차계약서 없이 보증금 100만 원, 월차임 30만 원에 임차하였다고 진술하였으나, 원고는 이BB과 그 무렵 보증금 1,000만 원의 임대차계약서(갑 제11호증)를 작성한 것으로 되어 있고, 2006. 7. 1.자 약정서(갑 제10호증)는 보증금에 대한 기재 없이 월 30만 원에 임차한 것으로 기재되어 있으며, 동일한 부동산에 대한 종전의 임대조건(연 차임 합계 360만 원)과 이후의 임대조건(월차임 없이 보증금만 1,000만 원)이 큰 차이를 보이고 있는데다가, 위 약정서의 실제 작성자에 대한 이BB과 김CC의 진술이 서로 일치하지 않는다.

④ After October 2008, the Plaintiff submitted materials using a number of card at ○○ City Council members. However, the Plaintiff failed to submit the credit card usage after July 2006, which is the time of transfer.

(5) Other local residents living in the previous farmland and substitute farmland are verified or testified to the effect that the Plaintiff actually resided in the present farmland and substitute farmland, but it is difficult to view that the above on-site verification and the above lease were genuine, in light of the fact that the above on-site verification and the above lease are difficult to accept the above statements.

(6) Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act, which was applied at the time the Plaintiff acquired substitute farmland, provides that "farmland" means the area within the Si/Gun/Gu where farmland is located or the Si/Gun/Gu adjacent thereto is located. Since the previous farmland is adjacent to ○○ Si/Gun/Gu where substitute farmland is located, if the Plaintiff resides in the present farmland, it can be deemed that the substitute farmland is located. However, since the present farmland and substitute farmland are located far short of 58 km, it is different from ordinary substitute farmland acquired for the purpose of self-reliance (On the other hand, Article 66 (1) 3 of the Enforcement Decree of the Restriction of Special Taxation Act, which was amended by Act No. 21565, Jun. 26, 2009, only "area within 20 kilometers in straight distance from the present farmland and the present land are located within the present land of △△△△△△, which is a witness, the Plaintiff cannot be viewed as having actually resided in the present land of this case.

(B) In light of the above circumstances, each statement in Gap's evidence Nos. 8 through 12, 14, 35, and 44 (including various numbers), which seems to correspond to the plaintiff's assertion that the plaintiff had resided in the previous farmland and substitute farmland, and each statement in the court of first instance witness ChoA, LeeB, KimCC, and KimCC's witness Lee Dong-D and KimCC's witness testimony in the court of first instance, are insufficient to believe it as it is, or there is no other evidence to acknowledge the plaintiff's assertion.

D. Sub-determination

Therefore, the disposition of this case on the ground that the plaintiff cannot be deemed to have resided in the previous farmland and substitute farmland for more than three years, and the disposition of this case is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.