Ulsan District Court-2014-Guhap2335 (2015.09.10)

Since farmland used as a site for a regional festival has lost its form as a thesis, it shall not be deemed farmland subject to self-recoveration or reduction.

Land which has ceased to be a form of discussion, such as the installation of mags and sculptures, so that tourists may freely enter into the regional festival promotion committee, shall not be deemed farmland in a state of temporary closure.

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

2015Nu23106 Transfer detailed and revocation of disposition

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〇〇〇세무서장

Ulsan District Court Decision 2014Guhap2335 Decided September 10, 2015

March 4, 2016

April 8, 2016

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 Defendant’s disposition of imposing capital gains tax on the Plaintiff on July 7, 2014 shall be revoked.

1. Details of the disposition;

가. 원고는 2013. 6. 19. 김AA 외 3명에게, 자신의 소유이던 울산 〇〇군 〇〇면〇〇리 〇〇 답 1,847㎡, 같은 리 〇〇 답 1,196㎡(이하 '이 사건 각 토지'라 한다)를 780,000,000원에 매도하기로 하는 계약을 체결한 후 2013. 8. 12. 소유권이전등기를 마치고(이하 '이 사건 양도'라 한다), 이 사건 각 토지가 조세특례제한법 제69조 제1항에 정한 '8년 이상 자경한 농지'에 해당한다고 보아 위 규정을 적용하여 2013. 10. 28. 피고에게 양도소득세 예정신고를 하였다.

B. On July 7, 2014, the Defendant denied the application for reduction or exemption of capital gains tax by deeming that each of the instant lands does not constitute one of its own farmland for at least eight years, and rendered a disposition imposing capital gains tax of KRW 186,340,734 on the Plaintiff (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on August 1, 2014, but the Tax Tribunal dismissed the appeal on October 6, 2014.

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

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Inasmuch as each of the instant lands was farmland actually cultivated at the time of the instant transfer or was temporary suspension, the provision on reduction or exemption of self-Cultivating farmland under Article 69(1) of the Restriction of Special Taxation Act should be applied, but the instant disposition on different premise should be revoked as unlawful.

1) The Plaintiff, except for the festival period until the transfer date of each of the instant land by the time of the instant transfer, has cultivated feed crops, such as crypt, Cheonguri, etc., by planting them, and cultivated sulbage, which is a multi-year plant. As such, each of the instant land constitutes farmland actually cultivated as of the date of the instant transfer.

2) Even if each of the instant lands does not constitute farmland actually cultivated as of the date of the instant transfer, it would have been in a temporary absence, and if it is transferred under a temporary absence, it should be deemed that it is the transfer of farmland.

(b) Fact of recognition;

1) At the time of March 6, 1997, the Plaintiff donated each of the instant land of KRW 27,173,990 to LeeB, his father, and transferred the instant land to three persons, including KimA, on August 12, 2013.

2) 원고는 위 1997. 3. 6.경부터 2010년까지 약 13년간 이 사건 각 토지에서 직접 논농사를 지으면서 형과 함께 이 사건 각 토지 인근에 있는 철물점을 운영하였고, 2011년부터는 경주시에 있는 '◆◆◆◆◆'에서 근무하면서 2011년 9,600,000원, 2012년 8,000,000원의 근로소득을 얻었으며, 2012년부터는 경주시에서 개인 사업을 경영하였는데, 2013년의 총수입금액은 1,175,930,644원이고 소득금액은 66,319,625원이었다.

3) The Ulsan Metropolitan City Promotion Committee for ○○○○○○○○○○○○○○○○○○ (hereinafter “instant Promotion Committee”) leased 3,275,300 won per annum from January 1, 201 to December 31, 201, each of the instant land and each of the instant land and each of the instant land and the instant land and the instant ○○○○○○○○○○○○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○2012.

4) After renting each of the instant lands, the instant promotion committee set up various sculptures, such as a steering boat tunnel and a fireworks, on each of the instant lands, and used them as a venue for events and a place for sales of a sprink and a sprink, when the instant promotion committee was held in spring and A, after renting each of the instant lands. On the other hand, each of the instant lands was used as above on October 2013, when the Plaintiff transferred the instant land, and the costs, such as the facility costs, etc. necessary for the said work, were borne by the instant promotion committee.

5) Each of the instant lands was leased to the instant promotion committee and used as a landscape complex and event site for the festival until the transfer of the instant land, and the management for farming was not performed even during the festival period, starting from 2014, after the instant transfer, feed crops, such as cryp and means, were planted, and as of May 26, 2015 (on-site inspection date at the court of first instance), ○○-gun leased and used them.

[Ground of recognition] The facts without dispute, Gap evidence 1 through 10, 17, 21 evidence, Eul evidence 1 through 7 (including each number), the fact inquiry results on the court of the first instance and the head of the Si/Gun in Ulsan Metropolitan City in Ulsan Metropolitan City in the first instance, the result of the on-site verification by the court of the first instance, part of the witness rightCC in the first instance, the testimony by the witness of the first instance court, and the purport of the whole pleadings

C. Relevant statutes

The entries in the attached Table-related statutes are as follows.

D. Determination

Article 69 of the former Restriction of Special Taxation Act (Amended by Act No. 13560, Dec. 15, 2015)

Paragraph (1) of Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26922, Jan. 22, 2016) provides that "the amount of tax equivalent to 100/100 of capital gains tax on the income accruing from the transfer of land prescribed by Presidential Decree, among the land cultivated directly by a resident prescribed by Presidential Decree who resides in the seat of farmland for not less than eight years by means prescribed by Presidential Decree, shall be reduced or exempted." Article 66 (4) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26922, Jan. 2, 2016) provides that "the farmland subject to paragraph (4) shall be based on the farmland as of the date of transfer under Article 162 of the Enforcement Decree of the Income Tax Act as of the date of acquisition until

Under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring any special circumstance, regardless of whether they are taxable or non-taxable requirements or tax reduction or exemption requirements, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fair taxation to strictly interpret the provisions that are clearly considered as preferential provisions among the requirements for reduction or exemption requirements (see Supreme Court Decision 2011Du20116, Dec. 13, 201).

Meanwhile, in order for the Plaintiff to have the capital gains tax reduced or exempted pursuant to relevant Acts and subordinate statutes, such as Article 69(1) of the former Restriction of Special Taxation Act and Article 66(1) and (2) of the Enforcement Decree of the Restriction of Special Taxation Act, the relevant land must be cultivated directly at the location of farmland for at least eight years, and the relevant land shall be farmland as of the date of transfer; and land not actually cultivated as of the date of transfer shall not be deemed farmland as of the date of transfer, unless it is directly used as farmland by the landowner or by another person, or is temporarily in a state of temporary closure (see Supreme Court Decision 2004Du5003, Jun. 23, 2005). Such reduced or exempted farmland shall not be deemed as including land in which the form of land can be used for cultivation even if it is not actually cultivated (see Supreme Court Decision 88Nu6252, Feb. 14, 1989).

On the other hand, whether a temporary holiday is in a state of farmland should be deemed a state of temporary holiday if the cause of an agricultural impairment is removed in light of various circumstances, and if it is deemed that it could have been used as farmland at the same time, and if it is transferred under such state of holiday, it should be deemed as a transfer of farmland (see Supreme Court Decision 97Nu706, Sept. 22, 1998).

In addition, the burden of proof on the above requirements for reduction or exemption lies on the person liable for duty payment who asserts it (see Supreme Court Decision 90Nu6293 delivered on April 23, 191).

1) In light of the above legal principles, first of all, the evidence submitted by the Plaintiff alone is insufficient to recognize the land as farmland actually cultivated as of the date of the instant transfer, and there is no other evidence to acknowledge it, and the Plaintiff’s assertion on this part is without merit.

① Each of the instant lands has been used as a debate until 2010. Even based on the Plaintiff’s assertion, the Plaintiff did not set a rice shed as past since January 1, 201, which was leased each of the instant lands to the Promotion Committee for the creation of a landscape complex, and each of the instant lands lost its form as a debate while managing the instant land by inserting expenses to the Promotion Committee and installing a marina sand.

② If each of the instant lands was farmland actually cultivated as of the date of the instant transfer, it is necessary to manage the instant land for farming by limiting people’s access, etc. However, each of the instant lands was sub-fashed so that people can freely access to the land at the time of the instant transfer, and there was no trace of managing each of the instant lands as above, and there was no high-speed frequently visible in dry field.

③ While the Plaintiff submitted the evidence Nos. 24-1 to 7 photographs at the trial room, the Plaintiff asserted that he satisfyed and managed feed crops on each of the instant lands other than the festival period. However, it is insufficient to acknowledge the Plaintiff’s assertion solely on the above evidence because it is difficult to ascertain whether the above pictures were photographs of each of the instant lands and photographs taken at a certain time. Even if the Plaintiff’s aerial photography (A evidence No. 5-1 to 3), it cannot be confirmed as to whether the present situation at the time of transfer of each of the instant lands was farmland actually cultivated as alleged by the Plaintiff. Rather, according to the fact inquiry by the ○○ Military Office of the High Court, each of the instant lands was written as planting feed crops in 2014, which was after the transfer of the instant lands, and it was left unsatisfyed on the floor during the festival period.

④ Moreover, even if it is anticipated that the Plaintiff’s disposal of feed crops would have been carried out, the Plaintiff did not submit such data, even if it is anticipated that the income accrued from the disposal of the feed crops was disposed of.

⑤ Meanwhile, it is recognized that each of the instant lands was partially constructed of a tunnel consisting of a multi-year plant, at the time of the instant transfer. However, some of the tunnels appears to have been left alone without removal in preparation for a festival every year, and it was not determined that they were provided for the purpose stipulated in the Farmland Act, such as the supply of food, etc., and thus, it cannot be deemed that the Plaintiff had constantly cultivated a multi-year plant, a multi-year plant.

④ According to the result of fact-finding conducted by the court of the first instance on the ○○ Military Office, the Plaintiff has cultivated each of the instant land along with the Plaintiff’s reference. However, considering the fact that the Plaintiff’s reference was difficult to cultivate due to exchange (see subparagraph 2) and that the Plaintiff was working in the company located in the racing market since 2011 and operated the business directly with wage and salary income or directly, the point of working after the lease of each of the instant land to the instant promotion committee in order to create a landscape complex, the size of the Plaintiff’s business sales, and the location of the Plaintiff’s workplace or place of business was continuously racing since 2011, it is difficult to independently gather or manage the farmer’s house in each of the instant land.

2) Next, in full view of the following circumstances acknowledged by the facts and evidence as seen earlier as to whether each of the instant lands was temporarily closed as of the date of the instant transfer, the evidence submitted by the Plaintiff alone is insufficient to acknowledge it, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s assertion on this part is without merit.

① As seen earlier, each of the instant lands is left alone for a festival period of at least three years from January 1, 201 to 2014, from which the Plaintiff leased each of the instant lands to the instant promotion committee. However, it is difficult to regard the period of at least three years not cultivated as temporary suspension.

② In view of the fact that each land of this case was leased to the Promotion Committee of this case and then used as a good material for building construction, had already been incorporated into a residential area before the transfer, had no high-speed road generally seen in the dry field, and rather had been debrising on the floor, it is difficult to deem that the objective phenomenon of each land of this case was scheduled to restore farmland at the time of transfer.

③ Furthermore, even after the transfer of this case, the Ulju-gun leased and used the instant land, which seems to be due to the continuous springing and festival of the instant land.

④ In addition, it is difficult to view that the Plaintiff temporarily suspended the farmer’s house with his intention to refrain from growing the land of this case in light of the circumstances of selling the land to KimA, etc. without cultivating and managing the land of this case.

3. Conclusion

If so, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall conclude this conclusion.

As such, the plaintiff's appeal is dismissed.