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(영문) 쟁점토지가 양도될 당시 농지였다는 청구주장의 당부
조세심판원 조세심판 | 2018-06-05 | 조심2018전1674 | 양도
【Request Number】

[Request Number] Trial 2018 Before 1674 ( June 5, 2018)

[Items]

[C] Assignment [Type of Decision] Dispact

[Summary of Decision]

[결정요지]쟁점토지의 항공사진 등을 보면 쟁점토지는 나대지 상태로 보이고 청구인이 제출한 사진자료(20◎◎.◎.◎. 촬영분)에서는 토지상에 방치된 골재가 나타나는 점 등에 비추어 이 건 처분은 달리 잘못이 없는 것으로 판단됨

[Related Acts]

[Related Acts and subordinate statutes] Article 69 of the Restriction of Special Taxation Act / Article 66 of the Enforcement Decree of the Restriction of Special Taxation Act

【Reference Decision】

[Reference Decision] Trial Decision 2018 middle0363

【Disposition】

The appeal is dismissed.

【Reasoning】

1. Summary of disposition;

A. The claimant acquired the OO’s land on December 21, 1982 and transferred it to OO on August 11, 2016, and applied for reduction or exemption of capital gains tax on October 31, 2016 when filing a report on capital gains tax on October 31, 2016.

B. As a result of an investigation conducted during the period from March 21, 2017 to April 9, 2017, the disposition authority denied reduction or exemption by deeming that the pertinent land is not farmland as at the time of transfer, and failing to meet the requirements for reduction or exemption of capital gains tax under Article 69(1) of the Restriction of Special Taxation Act. On August 1, 2017, the applicant corrected and notified the OO of capital gains tax for which 2016 reverts to the applicant.

C. The claimant appealed and filed an appeal on October 25, 2017 on March 12, 2018.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

Although the land at issue is “the answer” recorded in the public register, it was actually used as “the preceding” prior to a few years, and at the time of entering into a sales contract on July 1, 2016, it was said that the said land had been harvested at the time of harvest. According to the sales and purchase contract of the land at issue (the contract on July 1, 2016), it was confirmed that all “the preceding” or “the answer” was both “the buyer and three other parties were farmland in which the buyer and three other parties were involved.

Although the land at issue is located under the OO's aggregate surface and some of the areas of aggregate such as sand and gravel flow out, the photographs taken at the time of appraisal and assessment in September 2015 can be seen as having been cultivated as dry field to restore the land to its original state, such as bean, shoulder, potet and so on.

According to the OO satellite photographs taken in November 2015, it is confirmed that the OO satellite photographs were farmland, but it was confirmed that the OO satellite photographs were farmland.

In addition, according to the photographs taken by OOOO's general affairs team leader at the time of business trip to issue the qualification certificate for acquisition of the land at issue, OOO's general affairs team leader at the office was found to be a dry field at the time.

According to the specification of transactions in the deposit account OO, the claimant paid the OO on June 30, 2016 to the OOO as the seed price and the seed price of the OO and the OO at the expense of the OO. Since it is confirmed through objective evidence that the OO had been involved in the 19th generation at the time, such as the purchase and use of fertilizers from the OO, the disposition of this case is unfair on the ground that the disposition authority did not confirm the specific facts, and that the land at issue is not farmland at the time of transfer, and thus,

(b) Opinions of disposition agencies;

According to the aerial team of the OO map, the issue land appears to be a site at the time of 2008 and 2009, and since 2010 to 2015, it is clear that it is not farmland from 2008 to 2015. Considering the change of the key land at each point of time in the OO, it is clear that the site creation has been completed at the time of March 30, 2016 and the building has been newly built on February 2, 2016, because the building is deemed to have been newly built on August 11, 2016 or July 1, 2016, which is the date of this case transfer.

In addition, from 2013 to 2016, the details of the property tax imposed from 2016 on the land at issue are used as a aggregate storage yard with the land at issue. The claimant asserts that he paid OO to the interested parties holding the machinery of receiving and selling rooftops through the deposit account transaction statement, but it is not objective evidence that he sold the land at issue considering the characteristics of the claimant who has many farmland in possession.

The photograph submitted by the claimant as evidence that the house acceptance was serious on the disputed land was taken by the OOOO's general team of the general team of the OOO's Dong office in the 360 dynamic image upon the buyer's application for the qualification certificate for acquisition of farmland, and it was confirmed through OOO that the specific location of the land on the photograph was an OO that is adjacent to the disputed land.

Therefore, even if the claimant has been presumed to have cultivated the farmland directly at the beginning, it was the site at the time of transferring the land, so it is reasonable to exclude the reduction and exemption under Article 69 of the Restriction of Special Taxation Act and to impose capital gains tax.

3. Hearing and determination

A. Key issue

Appropriateness of the claim claim purporting that the land at issue was farmland at the time of transfer

(b) Relevant statutes;

(1) Restriction of Special Taxation Act

(1) Where a resident prescribed by Presidential Decree residing in the seat of farmland has been included in a residential area, commercial area, or industrial area (hereafter referred to as "residential area, etc." in this Article) under the National Land Planning and Utilization Act or has been designated as a land other than farmland prior to the date of replotting disposition under the Urban Development Act or other Acts, the tax amount equivalent to 100/100 of the capital gains tax on the income accruing from the transfer of land prescribed by Presidential Decree, among the land cultivated directly by the method prescribed by Presidential Decree, for at least eight years [where the farmland eligible for direct payments for management transfer prescribed by Presidential Decree, is transferred to the Korea Rural Community Corporation under the Korea Rural Community Corporation and Farmland Management Fund Act, which is a corporation prescribed by Presidential Decree (hereafter referred to as "agricultural corporation" in this Article), for at least three years], shall be reduced or exempted: Provided, That where the relevant land is incorporated into a residential area, etc. under the same Act, or has been designated as a land reserved for replotting other than farmland, the income amount equivalent to 10/100 only the income prescribed by Presidential Decree shall be reduced.

(2) Where an agricultural corporation transfers the relevant land or causes prescribed by Presidential Decree arise within three years from the date of acquisition, it shall pay an amount equivalent to the amount of taxes reduced or exempted under paragraph (1) as corporate tax when filing a tax base return for the taxable year in which

(3) Any person who intends to have paragraph (1) applied shall file an application for reduction, as prescribed by Presidential Decree.

(2) Enforcement Decree of the Restriction of Special Taxation

Article 66 [Reduction or Exemption of Transfer Income Tax on Self-Cultivating Farmland] (1) The term "resident prescribed by Presidential Decree who resides in the seat of farmland" in the main sentence of Article 69 (1) of the Act means a person who resides in an area falling under any of the following subparagraphs (including a person who falls under the relevant area at the time of commencement of cultivation but does not fall under such area due to reorganization of administrative district) and resides in such area for at least eight years [in cases where farmland eligible for payment of management transfer subsidies under paragraph (3) is transferred to the Korea Rural Community Corporation under the Korea Rural Community Corporation and Farmland Management Fund Act (hereafter referred to as the "Korea Rural Community Corporation" in this Article) or to a corporation under paragraph (2)] and is a resident under Article 1-2 (1) 1 of the Income Tax Act as of the date of transfer

1. An area in a Si (including a Special Self-Governing City and an administrative city established pursuant to Article 10 (2) of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City; hereafter the same shall apply in this paragraph), Gun, or Gu (referring to an autonomous Gu; hereafter the same shall apply in this paragraph

2. An area within a Si/Gun/Gu adjacent to an area referred to in subparagraph 1.

3. An area within 30 kilometers in a straight line from the farmland concerned.

(4) "Land prescribed by Presidential Decree" in the main sentence of Article 69 (1) of the Act means the farmland that has been cultivated by himself/herself for at least eight years (three years where farmland eligible for payment of management transfer subsidies under paragraph (3) is transferred to the Korea Rural Community Corporation or to a corporation under paragraph (2)) from the time of acquisition to the time of transfer, excluding the farmland falling under any of the following subparagraphs:

1. Farmland located in a Special Metropolitan City, a Metropolitan City (excluding a Gun located in a Metropolitan City) or a Si [excluding Eup/Myeon areas in an urban and rural complex form established under Article 3 (4) of the Local Autonomy Act and Eup/Myeon areas in an administrative city established under Article 10 (2) of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City] as of the date of transfer, for which three years have passed since it was incorporated into a residential, commercial and industrial area under the National Land Planning and Utilization Act: Provided, That the following cases shall be excluded:

(a) Where three years have passed since the date of phased implementation or compensation delay of a project implementer as farmland incorporated within a residential area, commercial area, or industrial area under the National Land Planning and Utilization Act due to the implementation of a large-scale development project (referring to a single project execution area, the project approval of which is the same) within a development project area, the scale of which is above the scale prescribed by Ordinance of the Ministry of Strategy and Finance (hereafter referred to as "large-scale development project" in

(b) Farmland incorporated into a residential, commercial or industrial area under the National Land Planning and Utilization Act due to the implementation of a development project in a development project area which is the State, a local government or a public institution prescribed by Ordinance of the Ministry of Strategy and Finance, which falls under extenuating circumstances prescribed by Ordinance of

(c) Where three years have passed since the date of incorporation into a residential area, commercial area, or industrial area under the National Land Planning and Utilization Act, and a large-scale development project is implemented within three years after incorporation into a residential area, commercial area, or industrial area, and the date of incorporation into such area due to the phased implementation of a large-scale development project operator

(5) 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: Provided, That in any of the following cases, the standards classified in the following subparagraphs shall apply:

1. Where a purchaser changes the form and quality and starts construction according to the terms and conditions of a sales contract before the transfer date: Farmland standards as of the sales contract date;

2. Where the relevant farmland has been designated as a land to be reserved for replotting other than farmland before a replotting disposition is taken, and it has become impossible to cultivate by implementing the land creation work as a land before three years elapse from the date of such designation: The standards as of the commencement date

3. Where suspension is made in order to prevent mining damage in accordance with the Mining Damage Prevention and Restoration Act, municipal ordinances of local governments, and budgets of local governments: Criteria for farmland as of the date of suspension of warning contract.

(9) Any person who intends to apply for abatement or exemption of transfer income tax under Article 69 (3) of the Act shall furnish, to the head of tax office having jurisdiction over the place of tax payment, an application for abatement or exemption prescribed by Ordinance of the Ministry of Strategy and Finance, along with his tax base return (including the preliminary return) for the taxable year whereto belongs the date of transfer of relevant farmland.

(10) The head of tax office who receives an application for tax abatement and exemption under the latter part of paragraph (9) shall promptly notify the head of tax office having jurisdiction over the tax payment place of the

(13) "Direct farming by a method prescribed by Presidential Decree" in the main sentence of Article 69 (1) of the Act means any of the following:

1. Where a resident is engaged in the cultivation of crops or the cultivation of perennial plants on his/her own farmland;

2. Where a resident cultivates or cultivates not less than a half of his farming work on his own farmland with his own labor;

(3) Enforcement Rule of the Restriction of Special Taxation Act

Article 27 [Scope, etc. of Farmland] (1) Farmland under the provisions of Articles 66 (4) and 67 (3) of the Decree shall be the dry field and dry field, which are the land actually used for cultivation regardless of the land category in the public cadastral book, and shall include the farming shed, compost shed, pumping station, water pumping station, branch office, density, waterway, etc. directly necessary for farmland management.

(2) The following standards shall apply to the verification of whether farmland falls under Article 66 (4) and 67 (3) of the Decree:

1. It shall be the land confirmed by any of the following methods that the transferor has owned for at least eight years (three years where the transferor transfers the farmland to the Korea Rural Community Corporation under the Korea Rural Community Corporation and Farmland Management Fund Act, and agricultural partnership and agricultural company under the Act on Fostering and Supporting Agricultural and Fisheries Enterprises, and four years where the previous farmland under Article 67 (3) 1 and 2 of the Decree is transferred). In such cases, where a farmer who has received the refund of capital gains tax under Article 70-2 (1) of the Act transfers the farmland, etc. redeemed again, and where it is verified as farmland under Article 66 (4) of the Decree, the period of cultivation within the lease period under Article 24-3 (3) of the Korea Rural Community Corporation and Farmland Management Fund Act shall be deemed that the relevant farmer owns

(a) Confirmation of a certificate of registered matters or a certified copy of land cadastre by sharing administrative information under Article 36 (1) of the Electronic Government Act;

(b) If it is impossible to verify by the method referred to in item (a), other evidential data;

2. That the transferor has resided in a location of farmland for at least eight years (three years in cases where the transferor transfers the previous farmland under Article 67 (3) 1 and 2 of the Decree to the Korea Rural Community Corporation under the Korea Rural Community Corporation and Farmland Management Fund Act, agricultural partnership and agricultural company under the Act on Fostering and Supporting Agricultural and Fisheries Enterprises, and four years in cases where the previous farmland under Article 67 (3) 1 and 2 of the Decree is transferred), and that it is the farmland as at the date

(a) Verification of certified copies of resident registration cards by sharing administrative information pursuant to Article 36 (1) of the Electronic Government Act: Provided, That where the applicant does not consent to verification in such manner, he/she shall submit such documents;

(b) Confirmation of the original and self-certification of the farmland ledger issued or issued by a Si/Gu/Eup/Myeon head;

(4) Local Tax Act

Article 106 (Classification, etc. of Objects of Taxation) (1) Objects of property tax on land shall be classified as objects of general aggregate taxation, special aggregate taxation and objects of separate taxation pursuant to the following subparagraphs:

1. Objects of general aggregate taxation: The land owned by a person liable to pay tax as of the tax base date, excluding the land subject to objects of special aggregate taxation or objects of separate taxation: Provided, That none of the following land shall be deemed objects of general aggregate taxation:

2. Special aggregate taxation: Any of the following land owned by a taxpayer as of the tax base date: Provided, That land referred to in subparagraph 1 (a) and (b) shall not be deemed special aggregate taxation:

(a) Land annexed to buildings prescribed by Presidential Decree, including land annexed to buildings for factories;

(b) Land prescribed by Presidential Decree, which is utilized for business or economic activities by installing vacant land or facilities necessary for the use of the relevant land, such as land for tea employment, land for bonded warehouses, land for testing, research, and inspection, land for logistics complex facilities, etc.;

(c) Land annexed to buildings and housing removed or destroyed, which is prescribed by Presidential Decree;

3. Objects of separate taxation: Any of the following land owned by a person liable to pay tax as of the tax base date:

(a) Land prescribed by Presidential Decree as land for a factory, field, paddy field, orchard and stock farm;

(5) Enforcement Decree of the Local Tax Act

Article 102 [Scope of Land Subject to Separate Taxation] (1) "Land prescribed by Presidential Decree" in Article 106 (1) 3 (a) of the Act means any of the following subparagraphs:

2. Water supply, paddy field, and orchard:

(a) Farmland owned by individuals and actually used for farming as of the tax base date, which is the rice paddy, paddy, or orchard (hereafter referred to as "farmland" in this Article): Provided, That the farmland in the urban areas of the Special Metropolitan City area, Metropolitan City area (excluding Gun areas), and Si area (excluding Eup/Myeon areas) shall be limited to farmland in development restriction zones and green belt zones (including areas, the detailed use area of which is not designated under the classification of items of Article 36 (1) 1 of the National Land Planning and Utilization Act among urban areas under subparagraph 1 of Article 6 of the same Act; hereafter the same shall apply in this paragraph);

C. Facts and determination

(1) There is no dispute as to whether the claimant has resided in the OO's Sungdong and OOO's workplace until now for more than 30 years and has cultivated directly on the key land for more than 8 years.

(2) According to the review data of a disposition agency, such as a written decision on objection ( December 14, 2017), the following facts are revealed.

(A) According to the investigation completion report (2017 April 7, 2017), since there was a new construction and construction of a factory building on the disputed land at the time of the investigation conducted by the disposition agency, it was not possible to confirm the farmland status at the time of the transfer of the disputed land; however,

Among the issues of land, the OOO buyer stated that the land at the time is the site condition without agricultural crops, and the current status of property tax assessment (2013 through 2016) is the aggregate storage place. According to the OO guidance airline's findings, the issues of land are the aggregate storage yard and the site.

(B) According to the official text of OO (20 February 20, 2017), OO land among the disputed land is filled up with aggregate as of 2013, and is subject to general aggregate taxation from 2013 to 2016, and such OO land is divided from the above land to July 27, 2016, and is shown as subject to taxation from September 2016.

(C) In light of the foregoing, it can be seen that the OO is engaged in the business by January 1, 2016 with permission from August 7, 2009 in the vicinity of the key land, such as OO.

(D) According to the OO aerial photography (2015 photographs) and OO aerial photography (30 March 30, 2016 photographs), it seems that it was a site at the time when the land at issue is taken.

(3) The main contents, such as the statement of reasons and evidence, submitted by the claimant, are as follows.

(A) According to a real estate sales contract (2016 July 1, 2016), the claimant shall have an OO on July 1, 2016 the answer 1,986 m280-6 m2,000 OO to the OO;

On the same date, the contract for the purchase and sale of the OO to the OO is concluded on the same date.

(B) In the case of a certified copy of the cadastral map (issuance on October 21, 2017), the OO land of the disputed land is connected with the aggregate site, and the OO is adjacent to the aggregate site, and it appears that there is miscellaneousOO between the aggregate site and the aggregate site.

(C) According to the letter of confirmation (2017 May 2017), the land purchased by the buyer in May 2017, including the key land, is purchased in the state of farmland in which the buyer directly cultivates crops, such as maizes, maws, shoulders, etc. at the time of concluding the sales contract as farmland owned by the claimant.

(D) According to the letter of confirmation on the current status of the use and cultivation of farmland ( March 2017), a village representative OO, a village OOO, and a village resident OOO directly cultivated crops, such as dynasium, hynas, etc., for a period of time from December 23, 1982 to August 11, 2016, as the claimant is the owner of the key land.

(E) According to the EOO’s confirmation ( March 2017), the claimant directly cultivated crops, such as maize and scams, on the disputed land. On April 20, 2016, EOO is deemed to have purchased dry field scam and scams and scams and scams and scams and scams and scams and scams and received scams by purchasing dry field scams and scams and scams, and when the attached deposit account transaction scamscams and scams were collected from EOO on June 3, 2016.

(F) According to the receipt (issuance on October 23, 2017), on June 8, 2016, the Plaintiff supplied 20 km goods of OOO to OO. According to the photographing content (S. 8. 2016. 2016. 8. 2016. 8. 8.), there are some aggregate left alone part of the land.

(4) In full view of the above facts and relevant laws and regulations, the claimant asserted that capital gains tax reduction or exemption should be applied pursuant to Article 69 of the Restriction of Special Taxation Act because he/she was farmland at the time of transfer of the disputed land. However, the purpose of Article 69 of the Restriction of Special Taxation Act is to interpret the special provisions that give preference to tax policies to the self-employed farmer in order to support the balanced development of rural communities, and the burden of proof must be borne by the person liable for tax payment;

According to the official text of OO(20.20.20.20.) (OOO's text, the land at issue is the OO's land from 2013 to 2016 as of February 2013, and OO's civil petition reply details ( March 29, 2017) are as follows: OO's business is being conducted by January 1, 2016 after obtaining permission on August 7, 2009 in the vicinity of the land at issue, such as OO's, and it appears that the land at issue appears in the site and the aggregate abandoned on the land is found in the photograph materials submitted by the claimant (the photographed on August 8, 2016).

The claimant presented a purchase receipt by asserting that he/she purchased fertilizers to cultivate maize in the disputed land. However, the claimant is difficult to recognize that the fertilizer purchased in possession of a large number of farmland was used in the key land. The confirmation document related to mato-mato-mato-mato-mato-mato-mato-mato-mato-mato-the-land prepared by the purchaser of the key land or neighboring residents, and it is not sufficient to confirm that the pertinent land was actually farmland at the time of transfer of the key land, and the disposition of this case that the disposition agency excluded the reduction and exemption under Article 69 of the Restriction of Special Taxation Act, and

4. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65 (1) 2 of the Framework Act on National Taxes because the petition for the trial results has no merit.

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