Early High Court Decision 2016Du1138 (Law No. 19, 2016)

The head of a branch office, and there is an earned income, and the letter of guarantee prepared between individuals is difficult to be considered as an objective evidence to prove self-defense.

In light of the fact that the applicant has received wage and salary income while serving in the position of the head of a branch office, the neighboring residents denied the applicant's self-reliance, the purchase of agricultural goods or the lack of evidence on agricultural crops, and the letter of self-reliance, etc. prepared and submitted between individuals, it is difficult to deem that the applicant has cultivated the land at issue for 8 years or longer in light of the fact that

Article 69 of the Restriction of Special Taxation Act (Abatement or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

Suwon District Court 2016Gudan8337 Revocation of Disposition of Imposing Capital Gains Tax

RoO

O Head of tax office

2017.04.26

2017.05.31

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

피고가 2015. 7. 1. 원고에 대하여 한 2014년 귀속 양도소득세 〇〇〇원의 부과처분을 취소한다.

1. Details of the disposition;

가. 원고는 2001. 1. 13. 〇〇시 〇〇구 〇〇〇동 690 전 1,465㎡(이하 '이 사건 토지'라 한다)를 취득하여 보유하다가 2014. 6. 26. 소외 〇〇도〇〇정보산업혐동조합(이하 '소외 조합'이라 한다)에 위 토지를 양도하고 소유권이전등기를 경료해 주었다.

나. 원고가 2014. 8. 28. 피고에게 이 사건 토지를 8년 이상 자경하였다는 이유로 양도소득세 감면 및 장기보유특별공제를 적용하여 양도소득세 예정신고를 하였으나, 피고는 양도소득세 조사를 실시한 후 원고가 위 토지를 8년 이상 자경하지 않았고 양도 당시 농지가 아닌 것으로 보아 자경 감면신청을 배제하고 장기보유특별공제를 부인하여 2015. 7. 1. 원고에 대하여 2014년 귀속 양도소득세 〇〇〇원(가산세 포함)을 경정・고지하였다(이하 '이 사건 처분'이라 한다).

C. On March 15, 2016, the Plaintiff filed an objection and filed an appeal with the Tax Tribunal for adjudication on March 15, 2016

However, May 19, 2016 was dismissed.

[Ground of recognition] No dispute, Gap 1, 2 (including paper numbers), Eul 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff purchased the instant land and started rice shed on or around 2001 for the purpose of engaging in agriculture after the Plaintiff retired from the agricultural cooperative, and continued to grow in the said land even after retirement from the retirement age on or around 2006, and had changed its land category from around 2009 to the 'former’ and transferred it to the non-party cooperative. Since the instant land was changed from 'the answer' to 'the land category was changed to 'the site' by the buyer, the land category was changed to 'the site' by the buyer. It is apparent that the Plaintiff was farmland as long as the Plaintiff cultivated in the form of 'the pre-transfer' or 'the answer' until the transfer of the land. Even if the Plaintiff did not prove the fact of self-defense for at least eight years, the special long-term holding deduction should be applied at least to the extent that the Plaintiff was self-employed by

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) Relevant legal principles

According to Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 13560 of Dec. 15, 2015), Article 66(1) and (13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26070 of Feb. 3, 2015; hereinafter the same shall apply), in order to obtain capital gains tax reduction or exemption, a Si/Gun/Gu where the relevant farmland is located for at least eight years, a Si/Gun/Gu located adjacent to the relevant farmland, or an area within 20km of straight line from the relevant farmland. In this case, the term "direct cultivation" means that a resident engages in cultivating crops or growing perennial plants on his/her own land, or growing or growing 1/2 or more of farming works with his/her own labor, regardless of the fact that the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26070 of Feb. 15, 2015).

2) Whether the plaintiff was self-incompetent

With respect to whether the Plaintiff cultivated the instant land directly for at least eight years in accordance with the aforementioned legal doctrine, comprehensively considering the following facts and circumstances acknowledged by the respective entries and the entire purport of the pleadings, including the health stand, and the evidence as seen earlier, it is insufficient to recognize that the Plaintiff directly cultivated the instant land for at least eight years, and there is no evidence to acknowledge otherwise.

○ Article 69 of the former Restriction of Special Taxation Act (Article 69 of the same Act) is reasonable to strictly interpret the language and text in that it may be abused as a means of tax evasion inasmuch as the tax burden is reduced for the land that a resident in the seat of the farmland has cultivated directly for at least eight years, thereby protecting farmers and promoting the development and encouragement of agriculture by reducing the tax burden.

○ The Plaintiff’s branch office of Suwon National Agricultural Cooperative from 2001 to 2006 during the period of possession of the instant land

으로 근무하면서 2001년 〇〇〇원, 2002년 〇〇〇원, 2003년 〇〇〇원, 2004년 〇〇〇원, 2005년 〇〇〇원, 2006년 〇〇〇원의 근로소득을 받아왔는바, 금융기관의 지점장으로서 고액의 급여를 받아 온 원고가 위 기간 동안에 이 사건 토지를 직접 경작한다는 것은 이례적이고 쉽지 아니한 것으로 보인다.

○ Details of transactions with Suwon Agricultural Cooperatives, etc. submitted by the Plaintiff shall be from 2009 to 2014.

As seen earlier, it is not clear whether the instant land is directly related to the cultivation of the instant land in light of the following: (a) the fact that the instant land was presumed to have been a site from the time the land was subdivided in around 2009 to the time of transfer in around 2014; and (b) the fact that the details of the sales or consumption of agricultural products produced and confirmed on the instant land, the area of which mainly pertains to seeds, fertilizers, and materials, and the area of which exceeds approximately 1,456 square meters, were not submitted; and (c) there was no submission by the Plaintiff of the data owned by agricultural machinery, farming equipment, etc. necessary for

Each entry in the certificate of candidate or confirmation of facts submitted by the Plaintiff is merely an abstract confirmation letter to the effect that the Plaintiff actually cultivated the Plaintiff, and thus, it is insufficient to prove the Plaintiff’s self-defense facts for not less than eight years, unless specific evidence is supported in relation to the fact that the Plaintiff actually cultivated, and some of them are written in the name of the same person, but their contents differ from each other, such as the period of cultivation, and are contrary to the description No. 4-1 and No. 2. Therefore, it is difficult to believe the contents as they are.

○ Other evidence submitted by the Plaintiff, namely, a certificate of registration of an agricultural business entity, a certificate of association member, farmland ledger, details of subsidies for rice income, etc. are insufficient as evidence proving the Plaintiff’s self-defense for not less than eight years in light of the aforementioned overall circumstances.

3) Whether the land of this case was farmland

As above, although the Plaintiff did not immediately apply a reduction or exemption of self-sufficiency under Article 69(1) of the former Restriction of Special Taxation Act with respect to the exclusion of the special long-term holding deduction, it is insufficient to recognize that the land of this case constitutes farmland by comprehensively taking account of the following facts and circumstances acknowledged by the overall purport of the statement and video and the entire pleading in addition to the evidence mentioned above, it is insufficient to acknowledge that the above land falls under the category of “pre-use for actual cultivation at the time of transfer” by only the descriptions or images of Gap 5, 9, 16, 18 (including virtual numbers), and there is no other evidence to acknowledge otherwise.

○○ 16’s photographs are unclear, and even if the Plaintiff asserted, they are pictures of neighboring land, not the land of this case, so it is insufficient to view them as evidence that the land of this case at the time of transfer constitutes farmland at the time of transfer.

Rather, according to satellite photographs (B 4-1 to 4, and B-8) taken from 2010 to 2014 submitted by the Defendant on the instant land, it can only be confirmed that dry field crops were not planted on the said land. The Plaintiff also asserted that the above satellite photographs were installed after harvesting crops or making farmland diversion, but the Plaintiff paid farmland diversion charges with permission on farmland diversion around 2009. However, even if the Plaintiff’s statement was based on his own statement, it is difficult to accept the Plaintiff’s assertion that the Plaintiff purchased and transferred the above land to Nonparty 2, the Plaintiff purchased and transferred the above land to Nonparty 2 from July 2013, 201 to Nonparty 68-29.

○ Meanwhile, the Plaintiff asserted to the effect that the land in the instant case was farmland as of the date of the sales contract, on the grounds that the seller bears the expenses for farmland diversion under the sales contract of this case, and that the development charges are borne by the buyer, but the purchaser performed changes in form and quality, construction of buildings, etc. in accordance with the terms and conditions of the sales contract, etc., and thus, it should be deemed farmland as of the date of transfer under Article 162(1) of the Enforcement Decree of the Income Tax Act. However, the above special agreement alone is a question as to whether the Plaintiff agreed to change the form and quality or start construction of buildings, etc. before the date of the settlement of the remainder after the date of the contract. However, the Plaintiff’s assertion cannot be accepted as long as the evidence submitted by the Plaintiff

4) Whether the special long-term holding deduction is applied

As seen above, it cannot be deemed that the instant land was farmland subject to reduction and exemption of self-arable farmland as of the date of transfer, and in light of all the above circumstances, it is difficult to recognize that the Plaintiff directly cultivated the said land for at least two years immediately before the date of transfer or for at least three years immediately before the date of transfer, for at least three years immediately before the date of transfer, or for at least 80 percent of its holding period. Therefore, it is difficult to deem that the Defendant erred in excluding the special long-term holding deduction on the premise that the instant land falls under

5) Sub-committee

After all, the plaintiff's argument cannot be accepted, and the defendant's disposition of this case is legitimate.

3. Conclusion

The plaintiff's claim is dismissed. It is so decided as per Disposition.