Daegu District Court 2007Guhap3826 ( October 15, 2008)

National High Court 2007Gu2444 (207.09.03)

Whether the transfer is a self-farmland for at least eight years after the reduction of transfer tax;

Since the acquisition of land, the direct payments for rice income transfer can be paid regardless of whether or not farmland is cultivated if the farmland owner submits only the farmland ledger and the certificate of cultivation of the village farm, and the fact that the direct payments for rice income transfer can not be recognized.

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 shall be revoked. The imposition of capital gains tax of KRW 109,150,000 against the plaintiff on March 31, 2007 by the defendant shall be revoked.

1. Circumstances of the disposition;

가. 원고는 1987. 8. 13. 이★★으로부터 포항시 북구 △△읍 ☆☆리 산 35-2 임야 4,661㎡' 분할 전 ☆☆리 산 38-10 임야 3,868㎡를 취득하여 보유하다가 2005. 9. 13. 위 ☆☆리 산 35-2 임야를 이○○ 외 4인에게, 분할 후 ☆☆리 산 38-10 임야 1,983㎡를 손●● 외 1인에게, 2005. 9. 29. 분할 전 ☆☆리 산 38-10에서 분할된 ☆☆리 산 38-53 임야 1,885㎡를 김남수에게 각 매도하였다.

B. On November 11, 2005, the Plaintiff filed an application for reduction or exemption of 100 million won with the provision of reduction or exemption under Article 69 of the Restriction of Special Taxation Act on the ground that the land in question falls under one of the self-arable farmland for not less than eight years and paid 2,89,300 won.

C. Accordingly, on March 31, 2007, the Defendant excluded the application for reduction or exemption of capital gains tax on the ground that the documents submitted by the Plaintiff alone cannot be deemed to have refisced for not less than eight years, and the Defendant corrected and notified the capital gains tax of KRW 109,150,000 in 205 (hereinafter “instant disposition”).

D. On June 29, 2007, the Plaintiff filed an appeal with the National Tax Tribunal on June 29, 2007, but was dismissed on September 3, 2007.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 2-1, 2, Eul evidence 3-4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's principal

Although the land of this case is forest land, it has been used as farmland before the plaintiff acquired it, and even though the plaintiff acquired the land of this case for not less than 8 years, it is illegal to dispose of this case that the plaintiff did not own the land of this case for not less than 8 years.

(b) Fact of recognition;

(1) From April 3, 1993 to May 14, 1997, the Plaintiff had difficulties in acquiring the land of this case, and operated the crogen fuel wholesale business with the trade name, i.e., 'brest gas industry' from Mannam-gu, Mannam-gu, Manpo-dong, 938-3.

(2) 원고의주민등록상주소지는1981. 8. 12.부터1991. 9. 25.까지는포항시남구◆◆동27-60 ◆◆주택나동111호,그다음날부터2003. 10. 5.까지는포항시북구□□동366 ■■타운114동203호,그이후이사건토지의양도시까지는포항시남구◆◆동27-60 ◆◆주택나동111호로되어있다.

(3) The farmland ledger with respect to the instant land was first prepared on July 26, 2001, and the customer comprehensive inquiry council prepared by the Daegu Port Branch of Korea Electric Power Corporation from June 2001, stated that electric facilities for farming use were used in the instant land from around June 2001.

(4) At the time of the preliminary return of capital gains tax on the land of this case, the Plaintiff submitted a certificate of purchase of agricultural chemicals with the purport that the Plaintiff purchased each agricultural chemical and fertilizer amounting to KRW 3,000 on March 28, 1995 from the daily agricultural cooperative, KRW 43,300 on August 2, 1995, KRW 7,600 on September 24, 1995, KRW 4,800 on April 24, 1997, KRW 24,200 on September 24, 1997, and KRW 1,00 on September 26, 200, the Defendant asked the head of the agricultural cooperative and the head of the △△△△△△△ National Agricultural Cooperative to inquire about the Plaintiff’s farmland loans, agricultural machinery and equipment, and the purchase of fertilizers, and the shipment details of harvested products, and the Plaintiff and the head of the agricultural cooperative were not admitted to the Plaintiff and the head of the agricultural cooperative.

(5) On January 5, 2004, the Plaintiff received rice purchase costs of KRW 127,935, rice shed subsidies of KRW 368,450, and rice income preservation subsidies of KRW 436,680 on November 21, 2005, and KRW 204,690 on December 30, 2005. The Plaintiff received rice purchase costs of KRW 756,330 on November 16, 2004 from the head of the comprehensive processing process of △△△○ Agricultural Cooperatives, and KRW 859,950, respectively, as rice purchase costs of KRW 89,950 on November 24, 2005.

(6) 이사건처분에앞서현장확인을한담당실무자가2006. 10.경작성한복명서에는이사건토지가논으로이용되고있고,이사건토지로부터300m 정도떨어진곳에조그만마을이있었으나현재는이주하고빈집으로남아있으며,이사건토지는방치된상태에있다가차▲▲이몇년전부터경작하여온사실을인근주민으로부터확인하였다는취지로기재되어있다.

(7) The instant land was assessed to be integrated into public wounded forest land by 2000, but was classified as farmland and subject to separate taxation since 2001.

[Reasons for Recognition] Uncontentious Facts, Evidence Nos. 1-3, 5, 6, evidence Nos. 5, evidence Nos. 7 through 9,12,14, 15, and 17, the whole purport of the pleadings

C. Determination

Article 69 of the Restriction of Special Taxation Act, Article 66 of the Enforcement Decree of the Restriction of Special Taxation Act, and Article 27 of the Enforcement Rule of the Restriction of Special Taxation Act for 8 years or longer have been cultivated by a resident for 8 years or longer between the time of acquisition by residing in an area within a Si/Gun/Gu where farmland is located or adjacent to, and the time of transfer from the time of acquisition, and the time of transfer, it refers to the land whose farmland is confirmed as of the date of transfer. The fact that the transferred land is farmland must be proved actively by the transferor, and the fact that the transferred land has been used as farmland for 8 years or more is recognized, and

The following circumstances revealed in the above facts, namely, ① the Plaintiff had a workplace at the time of acquiring the instant land, and operated a gaseous fuel even from April 3, 1993 to May 14, 197. ② The agricultural cooperative’s annual agricultural cooperative’s data submitted by the Plaintiff at the time of the preliminary return of capital gains tax were not deemed an appropriate quantity in light of the size of the instant land and 8,529 square meters. From September 24, 197 to June 4, 2001, it is difficult to find that the Plaintiff’s purchase of agricultural chemicals or fertilizers was difficult to support the Plaintiff’s purchase of farmland in light of the following circumstances: (i) the Plaintiff’s purchase of farmland from April 3, 1993 to May 14, 197; (ii) the Plaintiff’s first purchase of farmland from March 28, 1995 to September 24, 197 to the point that it was difficult to support the Plaintiff’s purchase of farmland and farmland from around 201.

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, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.