Madern 2014 Sub-4597

Where farmland location and residence are at least 20 kilometers in a straight line, it shall not be a resident prescribed by Presidential Decree who resides at the farmland location.

If the farmland location and residence are not adjacent to an administrative site, but in a straight line of 20 km or more, it shall not be a resident prescribed by Presidential Decree who resides in the farmland, and shall not be subject to reduction or exemption

Article 69 of the Restriction of Special Taxation Act: Reduction or exemption of transfer income tax on self-Cultivating farmland

The revocation of the disposition of revocation of imposition of capital gains tax by the District Court 2015 Guhap850

NewA

The head of the East High Tax Office

November 10, 2015

December 8, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 50,325,969 for the Plaintiff on July 1, 2014, as well as KRW 5,057,759 for the transfer income tax for the year 2013; KRW 1,661,510 for the additional dues due to the lapse of the payment deadline; KRW 5,704,520 for the local income tax; and KRW 62,749,750 for the Plaintiff.

1. Details of the disposition;

A. From April 27, 1994 to June 4, 1994, the Plaintiff resided in BB from March 18, 1969 to June 14, 2013, when excluding the period during which the resident registration was completed in AA., the Plaintiff acquired the farmland of this case from A.A. Si, A. Si, 1,921 square meters and 654 square meters of the same Ri (hereinafter referred to as “the farmland of this case”) on November 29, 193, and sold it to E.A. on April 12, 2013.

B. The Plaintiff filed an application for reduction or exemption of capital gains tax pursuant to Article 69(1) of the Restriction of Special Taxation Act on the ground that the Plaintiff transferred the land directly cultivated for not less than eight years upon filing a report of capital gains tax on the instant farmland.

C. On July 1, 2014, the Defendant determined and notified the Plaintiff of KRW 55,383,720 (including additional tax) of the transfer income tax reverted to July 1, 2013 (hereinafter “instant disposition”).

D. Accordingly, the Plaintiff filed an appeal with the Tax Tribunal on September 15, 2014, but the Tax Tribunal dismissed the Plaintiff’s appeal on December 3, 2014.

[Ground of recognition] Evidence Nos. 1 through 5, Evidence Nos. 1 through 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was cultivating the farmland of this case to the Do and the Do to the Do to which the Plaintiff was the owner of the farmland of this case. Since the purchase of the farmland of this case on November 5, 1974 from the Do to the Do, the Plaintiff started planting the 146th tree seedlings from 193 to the Do to the Do to the 1993. Therefore, the Plaintiff has cultivated the farmland of this case directly for at least eight years. It is unreasonable to impose capital gains tax on the ground that the Plaintiff did not reside within a certain distance from the farmland of this case. Accordingly, the disposition of this case is unlawful.

B. Relevant statutes

/ Restriction of Special Taxation

Article 69 (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

(1) With respect to income accruing from the transfer of land prescribed by Presidential Decree, which is directly cultivated by a resident prescribed by Presidential Decree, who resides in farmland for at least eight years [where such farmland eligible for subsidies for direct payments transfer prescribed by Presidential Decree is transferred no later than December 31, 2015 to the Korea Rural Community Corporation established under the Korea Rural Community Corporation and Farmland Management Fund Act or corporations prescribed by Presidential Decree which mainly engage in agriculture (hereafter in this Article, referred to as "agricultural corporations"), not less than three years] by the means prescribed by Presidential Decree, the tax amount equivalent to 100/100 of capital gains tax shall be reduced or exempted: Provided, That where the relevant land is incorporated into a residential area, commercial area, or industrial area established under the National Land Planning and Utilization Act (hereafter in this Article, referred to as "residential area, etc.") or has been designated as a land, other than farmland, prior to a replotting disposition pursuant to the Urban Development Act or other Acts, the amount of tax equivalent to 100/100 of capital gains tax shall be reduced only

(3) Any person who intends to have paragraph (1) applied shall file an application for reduction or exemption, as prescribed by Presidential Decree (where any farmland subject to the direct payment subsidy prescribed by Presidential Decree is transferred to the Korea Rural Community Corporation established under the Korea Rural Community Corporation and Farmland Management Fund Act or to a corporation prescribed by Presidential Decree which mainly engages in agriculture (hereafter referred to as "agricultural corporation" in this Article) not later than December 31, 2015, at least three years).

(1) Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 25211, Feb. 21, 2014; hereinafter the same shall apply)

Article 66 (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

(1) The term "resident prescribed by Presidential Decree residing in the location of farmland" in the main sentence of Article 69 (1) of the Act means a person who has cultivated while living in an area (including an area which falls under the relevant area at the time of commencement of cultivation but comes not to fall under such area due to a reorganization of administrative district, etc.) falling under any of the following subparagraphs for at least eight years (three years from the date of transfer of farmland eligible for the payment of management transfer subsidies under paragraph (3) to the Korea Rural Community Corporation under the Korea Rural Community Corporation and Farmland Management Fund Act (hereafter in this Article, referred to as the "Korea Rural Community Corporation") or to a corporation under paragraph (2) and who is a resident under Article 1-2 (1) 1 of the Income Tax Act as of

1. An area in a Si (including a Special Self-Governing City and an administrative city established pursuant to Article 15 (2) of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City; hereafter the same shall apply in this paragraph), Gun, or Gu (referring to an autonomous Gu; hereafter the same shall apply in this paragraph

2. An area within a Si/Gun/Gu adjacent to an area referred to in subparagraph 1.

3. An area within 20 kilometers in a straight line from the farmland concerned.

C. Determination

First, we examine whether the Plaintiff constitutes “resident prescribed by Presidential Decree residing in the seat of farmland” as provided for in Article 69(1) of the Restriction of Special Taxation Act. Article 69(1) of the Restriction of Special Taxation Act provides that the amount of tax equivalent to 100/100 of capital gains tax on the income accruing from the transfer of land prescribed by Presidential Decree, among the land cultivated directly by the resident prescribed by Presidential Decree for not less than eight years by the resident prescribed by Presidential Decree. Article 66(1) of the former Enforcement Decree of the Restriction of Special Taxation Act provides that the resident prescribed by Presidential Decree residing in the seat of farmland shall be eight years or longer (including Special Self-Governing City and an administrative city established pursuant to Article 15(2) of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City; hereafter the same shall apply in this paragraph) and Gun/Gu (referring to an autonomous Gu; hereafter the same shall apply in this paragraph) located in the boundary of the Si/Gun/Gu (No. 2) adjacent to the area under subparagraph 1 and paragraph (1) of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.