Suwon District Court 2013Gudan175 (2013.08.09)

The meaning of direct cultivation can not be deemed to include the labor force of family or the mechanicalization work by others, unless there are special circumstances.

The meaning of direct cultivation can not be deemed as including the labor force of family or the mechanicalization work by others, unless there are special circumstances, and the imposition of additional tax cannot be deemed as unlawful due to abuse of rights, etc. unless it satisfies the requirements for self-regulation reduction or exemption in 8 years.

Article 66 of the Enforcement Decree of the Restriction of Special Taxation Act: Reduction or exemption of transfer income tax for self-Cultivating farmland

2013Nu25698 Revocation of Disposition of Imposing capital gains tax, etc.

KimA

Head of Central Tax Office

Suwon District Court Decision 2013Gudan1175 Decided August 9, 2013

January 15, 2014

February 19, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance shall be revoked. The defendant's disposition of imposition of the capital gains tax belonging to the year 2012 against the plaintiff on October 12, 2012 shall be revoked.

1. The part citing the judgment of the court of first instance

The reasoning of the judgment of this court is that adding the following matters to the judgment of the court of first instance, or adding the judgment of the plaintiff's assertion to the next paragraph is identical to the relevant part of the judgment of the court of first instance. Therefore, the relevant part shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of

○ 2 The following shall be added up to the 11th day:

Article 69(1) of the Act and Article 6(13) of the Enforcement Decree of the Act stipulate that “The Plaintiff’s direct farming” should include the cultivation of his/her family members who share with the same livelihood or household. However, in light of the following various circumstances, the Plaintiff’s assertion cannot be accepted: “The Act on Regulation of Tax Reduction and Exemption or the Restriction of Special Taxation Act does not provide for the concept of direct farming, which is one of the requirements for reduction and exemption of capital gains tax; and at that time, the Supreme Court interpreted that “direct farming” includes not only the cultivation of the transferor but also the cultivation of another person under its own responsibility and account (see, e.g., Supreme Court Decision 9Nu96, Oct. 21, 194; Supreme Court Decision 2003Du2465, May 30, 2006). However, it is unreasonable to interpret that the former Enforcement Decree of the Act on Tax Reduction and Exemption of Income Tax should not be subject to the principle of no taxation without law.”

2. Additional determination

The plaintiff asserts that the plaintiff directly cultivated the farmland of this case for at least four years and three months from January 25, 1980 to June 30, 1989, when he worked as a court official in the Gwangju area.

However, the burden of proof as to the self-sufficiency of transferred farmland lies in a taxpayer claiming it (see, e.g., Supreme Court Decision 92Nu11893, Jul. 13, 1993); various circumstances in the first instance trial; the meaning of direct cultivation as referred to in Article 66(13) of the Enforcement Decree of the same Act is that at least 1/2 of the farming work must be cultivated with his own labor as seen earlier; it is difficult to view that the labor force of his family or the mechanicalization work by another person is included in the absence of special circumstances; the remainder of the period of 3 years after the Plaintiff’s internal tax payment is 11 km away from the farmland of this case; the father of the Plaintiff was an OBB association member of the regional BB association; the Plaintiff’s father did not appear to have objective materials supporting the purchase of agricultural materials under his/her name; the Plaintiff’s occupation, residence, family relation, etc.; the Plaintiff’s assertion that all of the witnesses submitted by the Plaintiff is insufficient to accept the Plaintiff’s labor force.

In addition, the Plaintiff asserts that even though he applied for reduction and exemption by the due process of eight years by the deadline for filing capital gains tax, the Defendant’s denial of self-defense and imposition of additional tax at the time of the lapse of six months thereafter constitutes an abuse of rights, etc. However, as seen earlier, insofar as the Plaintiff failed to meet the requirements for reduction and exemption by the Plaintiff for eight years, the imposition of additional tax cannot be deemed as unlawful solely on the ground that the Plaintiff’s tax exemption was made, etc.

3. Conclusion

The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.