Cho High 2013Gu0382 ( March 22, 2013)

It is difficult to deem that the Plaintiff directly cultivated the instant land for not less than eight years.

Since the Plaintiff resided in the area other than the location of the instant land and worked as a full-time employee during the retention period of the instant land, the instant disposition that denied reduction and exemption on a eight-year basis and imposed capital gains tax is legitimate.

2013Guhap149 Revocation of Disposition of Imposing capital gains tax

KimA

Head of Namgu Tax Office

September 27, 2013

November 8, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of OOO of transfer income tax and OO of local income tax for the Plaintiff on September 3, 2012 shall be revoked, respectively.

1. Details of the disposition;

A. On June 26, 1996, the Plaintiff completed the registration of ownership transfer based on the cancellation of title trust with respect to the OO-O-O 669 square meters (hereinafter “instant land”).

B. When the instant land was included in the BBP industrial complex development project district, the Plaintiff transferred the instant land to the Korea Land and Housing Corporation, a project operator, in accordance with the procedure for acquisition of public land through consultation on October 26, 2010.

C. In filing a preliminary return of capital gains tax on December 31, 2010, the Plaintiff applied for reduction or exemption of capital gains tax on the ground that the instant land constitutes “self-arable farmland for at least eight years” under Article 69(1) of the Restriction of Special Taxation Act.

D. Accordingly, on May 30, 2012 to June 15, 2012, the Defendant issued an on-site investigation, etc., and on September 3, 2012, on the ground that the Plaintiff did not directly cultivate the instant land for at least eight years, the Defendant determined and notified the Plaintiff of the capital gains tax OOOO (hereinafter “instant disposition”).

E. The Plaintiff filed an appeal on December 26, 2012 upon filing an objection on September 24, 2012, but the Tax Tribunal dismissed the appeal on March 22, 2013.

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

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) In around 1972, the Plaintiff acquired the instant land, but held title trust with his own form KimCC, and completed the registration of ownership transfer on the ground of the termination of title trust on June 26, 1996, the Plaintiff’s acquisition date of the instant land should be deemed as 1972 and determined as to whether 8 years have elapsed from the time of transfer until the time of transfer.

2) The Plaintiff resided in OO in 1981 to O, 1986, and cultivated the instant land directly, while living in the workplace in 1987 to 2001, and cultivated the instant land at Bhoday or at the end of weekend, and leased it to xD and the x E in 2008 from 200 to 2008. Therefore, the Plaintiff cultivated the instant land directly for about 23 years from 1981 to 2001, from 209 to 2010 to 27 October 27, 2010.

3) Even if the Plaintiff leased the instant land to the KE for about 19 years from 1990 to 2008, the Plaintiff directly cultivated the instant land for about 11 years from 1981 to 1989, from 2009 to 2010, and thus satisfying the requirements for self-sufficiency for eight years.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) The details of the change in ownership of the instant land are as follows. At the time the Plaintiff’s model KimCC completed the registration of ownership transfer on the instant land on the grounds of sale on March 31, 1972, the Plaintiff was 15 years old (1957 students), and KimCC was 18 years old (1954 students).

Date of Receipt

Grounds for Registration

Owners

may 31, 1972

on March 14, 1972

CC Kim

June 26, 1996

The termination of title trust on June 24, 1996

KimA

October 26, 2010

On October 26, 2010, the acquisition of public land by consultation.

Korea Land and Housing Corporation

2) The following are the details of change of the Plaintiff’s registered domicile and the distance between the registered domicile and the location of the instant land.

Residence Period

Place of residence

Distance from OO accounting (time required for motor vehicles)

1976. 10. 15.〜1980. 6. 8.

OOOO-gu OOdong

26 km ( approximately 43 km)

1980. 6. 9.〜1981. 7. 16.

OOOO-gu OOdong

26.5 km ( approximately 46 km)

1981. 7. 17.〜1986. 7. 23.

OOOO-gu OOdong

500m (as about 2 minutes)

1986. 7. 24.〜1987. 7. 13.

OO also OOOOOCO

23 km ( approximately 30 km)

1987. 7. 14.〜1987. 12. 31.

OOOO-gu OOdong

22.29km ( approximately 30 minutes)

1988. 1. 1.〜2004. 12. 12.

OOOO-gu OOdong

22.14km ( approximately 36 minutes)

2004. 12. 13.〜현재

OOOOOOE OOOE

16.8km ( approximately 26 minutes)

3) The details of the Plaintiff’s earned income entered in the integrated national tax computer network are as follows:

Year

Workplaces

Total revenue amount (won)

Jinay

1985

FF milk

OOO

In comparison with the revenue amount in 1986, it shall be regarded as the revenue amount for 4 months.

1986

FF milk

OOO

Places of business: OOOOO Eup

1987

GG Holdings Inc.

OOO

Places of business: OOOOO Eup

1988

GG Holdings Inc.

OOO

1989

GG Holdings Inc.

OOO

1990

GG Holdings Inc.

OOO

1990

HH Co., Ltd.

OOO

Place of business: OO-gu O-dong

Work from 1991 to the transfer of the instant land;

1991

HH Co., Ltd.

OOO

4) On December 31, 2010, the Plaintiff submitted a confirmation of the fact of cultivation under the name of Kim II, Kim JJ, and Kim KK (No. 7) with the purport that “the Plaintiff was directly cultivated from the instant land for about 14 years from March 1997 to October 10, 2010.”

5) 한편 원고는 2012. 7. 4. 과세전적부심사 청구 시에는 아래와 같은 내용의 김II, 김LL, 김MM, 김NN, 강PP, 곽QQ 명의의 농지경작사실확인서(을 제8호증)를 제출하였는데, 원고의 자경기간에 관하여 위 경작사실확인서의 내용과 상당한 차이가 있다.

The plaintiff confirmed that he continued to cultivate crops, such as rice shed, from 1981 to 2001, and from 2009 to 2010, such as farmland transfer (from 2002 to 2004, the farmland was leased to YD, and from 2005 to 2008, the farmland was leased to YE).

6) The KE received direct payments for preserving rice income, etc. paid to the instant land in 2005 to 2008. In addition, at the time of investigating whether a public official in charge of the Defendant’s public official contaminated the instant land on May 30, 2012 to June 15, 2012, the KE drafted a written confirmation with the Defendant’s public official in charge as follows:

상기 본인은 OO면 OO리에서 태어나 현재까지 농사를 짓고 있는 농군입니다. 상기 대상토지는 1990년부터 2008년도까지 약 20년간 본인이 임차하여 농사를 지었으며, 삯(임대료)는 년 OOOO원 정도의 쌀을 주었습니다.

7) However, on July 4, 2012, the KE: (a) found the employee of the tax office at the beginning of the Party at the Plaintiff on the back of July 4, 2012, and proposed a statement that he/she had been cultivated for about 20 years and that he/she had been under cultivation for about 20 years. He/she erred his/her memory and confused with other leased farmland. He/she prepared a letter of confirmation that the year he/she cultivated was about 7 to 8 years.

8) From June to June 2009 to June 2010, the Plaintiff purchased agricultural chemicals, etc. equivalent to the total amount of KRW OOO. According to the data of the Statistics Korea’s rice income analysis from 1996 to 2000 of rice cultivation scale, the annual net income per 10a (1,000 square meters) of rice is the degree of KRW OOO to KRW 10.0.

[Reasons for Recognition] Unsatisfy, Gap evidence 4 through 6, Eul evidence 3 to 16 (Dismissal)

Each entry, the purport of the whole pleadings, including branch numbers,

D. Determination

1) Article 69(1) of the Restriction of Special Taxation Act and Article 66(1) and (13) of the Enforcement Decree of the Restriction of Special Taxation Act clearly stipulate that a resident shall directly cultivate the relevant farmland while residing in a Si/Gun/Gu where the relevant farmland is located for at least eight years, in a Si/Gun/Gu adjacent to the relevant farmland, or in an area within 20 kilometers in a straight line from the relevant farmland. In this case, "direct cultivation" means that a resident is engaged in cultivating or cultivating crops or perennial plants on his/her own farmland at all times or by cultivating or growing them with his/her own labor by interpreting the meaning of "one-2 or more own labor" as a literature (see, e.g., Supreme Court Decision 2010Du8423, Sept. 30, 2010); the burden of proving that he/she directly cultivated the land that is transferred as the requirements for reduction or exemption of capital gains tax on his/her own farmland is a person liable to pay capital gains tax (see, e.g., Supreme Court Decision 194Nu96.

2) In light of the following circumstances known through the above facts, it is insufficient to recognize that the Plaintiff directly cultivated the instant land during the period of the Plaintiff’s assertion by itself, and there is no evidence to acknowledge otherwise. Accordingly, the Plaintiff’s assertion is without merit.

① From around 2005 to 2008, the KE received direct payments compensating for rice income, etc. on the instant land, and around May 2012, the KE leased and cultivated the instant land for about 20 years from around 1990 to around 2008 to around 2008, and submitted a confirmation letter that the Defendant’s public official in charge gave the Plaintiff a rice amounting to the rent. On the other hand, around July 2012, the KE written statement of “E” to the Plaintiff was mistakenly prepared in confusion with other leased farmland, and the Plaintiff cultivated the instant land for about 7 to 8 years, along with the KED, is difficult to believe in light of the process of its preparation.

② From around 1985 to the time of the instant transfer, the Plaintiff continued to serve in FF milk, GG alone Holdings Co., Ltd., and HH.

③ With the exception of the period from July 17, 1981 to July 23, 1986, the Plaintiff resided from the land of this case in about about 30 to 40 minutes, and it is presumed that the annual net profit of the farmland of this case is about KRW 00,000. Nevertheless, it does not seem that the Plaintiff living in the workplace frequently visited the remote distance for the cultivation of the land of this case where there is little profitability.

④ The details of transactions with the Gu Agricultural Cooperatives submitted by the Plaintiff are merely those after 2009 when the lease with the EE is terminated, and there is no objective data to prove that the Plaintiff had cultivated the land in question directly during the previous period.

⑤ '원고가 1981년~2001년, 2009년~2010. 10. 26. 이 사건 토지를 직접 경작하였다'는 내용의 김II, 김LL, 김MM, 김NN, 강PP, 곽QQ 명의의 경작사실확인서(갑 제4호증의 1)는, 원고가 양도소득세 예정신고시 제출한 '원고가 1997. 3.경~2010. 10.경 약 14년 간 이 사건 토지를 직접 경작하였다'는 김II, 김JJ, 김KK 명의의 경작사실확인서(을 제7호증)와 모순되어 믿기 어렵다.

3. Conclusion

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