Cho High Court Decision 2010Du3983 ( October 17, 2011)

It shall not be deemed that not less than 1/2 of the farming work has been cultivated with his own labor.

Considering the fact that the real estate lease business, construction business, etc. in various areas after the acquisition of farmland carries out various projects, and the place of residence is considerably far away from the farmland, and the objective evidence proving the fact of farming is not presented at all, it is difficult to believe that at least half of the farming work was cultivated with his own labor.

2011Gudan14954

IsaA

Head of the Do Tax Office

October 5, 2011

October 26, 2011

1. The plaintiff's claim is dismissed.

2. The plaintiff answers the costs of lawsuit.

The imposition of capital gains tax of 57,248,170, and special tax in agricultural and fishing villages of 3,421,590 imposed by the defendant on September 15, 2010 against the plaintiff shall be revoked.

1. Details of the disposition;

A. On August 8, 1998, the Plaintiff acquired and owned OO-dong 000-0 1,160.5 (hereinafter “the instant farmland”) and transferred land to the Council-based City on March 4, 2009 and June 17 of the same year by means of purchase of land for public use.

B. The Plaintiff, upon filing a preliminary return on the tax base of capital gains tax following the transfer of the farmland in this case, voluntarily limited the farmland in this case for not less than eight years, and applied for reduction or exemption of capital gains tax pursuant to Article 69

C. However, the Defendant did not recognize the Plaintiff’s own farmland for not less than eight years, and excluded the above application for reduction and exemption, and imposed and notified the two capital gains tax for the year 2009, including the total of 57,248,170, and two special rural development tax for rural development, and the total of 3,421,590 won.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff directly cultivated the farmland of this case for not less than 8 years, the transfer income tax on the farmland of this case constitutes "self-arable farmland for not less than 8 years" under Article 69 of the Restriction of Special Taxation Act shall be reduced or exempted, and the disposition of this case reported differently is unlawful.

(b) relevant statutes;

It is as shown in the attached Form.

C. Determination

In order for the farmland of this case to be subject to reduction or exemption of capital gains tax, Article 69 of the Restriction of Special Taxation Act (amended by Act No. 9921 of Jan. 1, 2010) and Article 66 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21565 of Jun. 26, 2009) provide that the plaintiff shall directly cultivate the farmland of this case, i.e., cultivating crops or growing perennial plants with 1/2 or more of his own labor, or otherwise bear the burden of proving that the plaintiff had cultivated the farmland of this case for 8 years or more since its acquisition of the farmland of this case, 3 years or more, or 4 years or more, or 1/2 or more of the first written confirmation confirmation of credibility of the farmland of this case by the owner of this case (amended by Presidential Decree No. 21565 of Jun. 26, 2009). However, there is no evidence to acknowledge credibility of the plaintiff's first written confirmation on the farmland of this case.

Second, since the confirmation of facts by the co-owner, the plaintiff's punishment, and the self-employed parties of the farmland in this case are sufficiently likely to have been prepared differently from the facts at the plaintiff's request, it is difficult to view that it is an objective evidence that can prove the plaintiff's direct connection of farming

Third, the plaintiff has presented all objective evidence to prove the fact of farming, such as evidence on the purchase of seeds, fertilizers, agricultural chemicals, etc. required for the cultivation of the farmland of this case.

Fourth, it is difficult to believe that the Plaintiff was engaged in cultivating crops or growing perennial plants for at least eight years from the farmland in this case, or cultivated or cultivated with its own labor on the ground that the Plaintiff was not recognized as a self-employed fact for at least eight years. Accordingly, the disposition of this case is legitimate for the reason that the Plaintiff was not subject to reduction of or exemption from the transfer income tax on the farmland in this case, and that the Plaintiff’s assertion is without merit.

3. Conclusion

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