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(영문) 춘천지방법원 2009. 07. 16. 선고 2008구합1885 판결
농지대토에 대한 양도소득세 감면[국승]
Title

Reduction of or exemption from capital gains tax for farmland substitute land

Summary

It is difficult to regard it as a direct self-confiscing in view of the fact that he was directly engaged in cargo transportation business.

The decision

The contents of the decision shall be the same as attached.

Text

1. The plaintiff's claim is dismissed.

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

Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 303,008,940 against the Plaintiff on April 7, 2008 shall be revoked.

Reasons

1. Details of the disposition;

A. On March 7, 2002, the Plaintiff: (a) on March 5, 2007, on the part of the Plaintiff’s father, on eight parcels of land, such as GGG Dong 780 square meters, which were donated from the Plaintiff’s father; (b) on March 5, 2007, on the aggregate of seven parcels of land (hereinafter “each parcel of land in this case”) such as 780,000,000 won, sold to Nonparty 1, who was donated from the Plaintiff’s father; and (c) completed the registration of ownership transfer on the 16th of the same month.

B. In filing a preliminary return on the transfer income tax for the transfer of each of the instant lands to the Defendant on May 7, 2007, the Plaintiff reported the transfer of each of the instant lands to the Defendant on May 31, 2007, on the ground that the transfer of each of the instant lands falls under the reduction or exemption of the transfer income tax, on the grounds that the transfer of the said land constitutes the "income from substitute land of the farmland under Article 67 (1) 1, (2), and (3) 1 (a) of the former Restriction of Special Taxation Act (amended by Presidential Decree No. 20620, Feb. 22, 2008; hereinafter the same shall apply) by deducting KRW 100,000,000,000 for the maximum reduction or exemption limit, from the amount of the transfer income tax calculated under the relevant provisions of the Income Tax Act, and paid it on May 31, 2007 after filing the return as the transfer income tax.

C. However, the Defendant calculated capital gains tax without tax reduction or exemption under the former Restriction of Special Taxation Act on the ground that the Plaintiff did not directly cultivate each of the instant land. On April 7, 2008, the Defendant corrected and imposed capital gains tax on each of the instant land at KRW 303,008,940 (hereinafter “instant disposition”).

D. On June 16, 2008, the plaintiff raised an objection against the defendant on June 11, 2008, but July 11, 2008.

On August 29, 2008, the Tax Tribunal filed a request for a trial on August 29, 2008, but the decision of dismissal was made on December 5, 2008.

[Ground of recognition] Facts without dispute, Gap 1, 2, and 4 evidence, Gap 3 evidence, Eul 1-1, Eul 5-1-3 evidence, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

O The Plaintiff had been engaged in wholesale business, cargo transportation business, private taxi driving, etc., while residing in the original city, which is the location of each land of this case. The Plaintiff directly cultivated each of the instant land from his father on every day after donated each of the instant land to his father, and directly purchased DD 143-3 2,890 m2,8905 m2 (hereinafter referred to as “DD m2”) on the same day on March 5, 2007, by taking the Plaintiff’s lodging room, as the Plaintiff’s resident, the GuCC, the village resident, and Korea EM, etc., to bring about and cultivate gold equipment for 206.

O) Therefore, the income earned by the Plaintiff through the transfer of each of the instant lands constitutes “income generated from substitute land for farmland under Article 70(1) of the former Restriction of Special Taxation Act” and falls under the reduction or exemption of capital gains tax, and thus, the instant disposition issued on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) The provision on capital gains tax exemption for substitute land for farmland under Article 70 (1) of the former Restriction of Special Taxation Act applies to income generated from substitute land for farmland that is directly cultivated by a resident in the seat of farmland and prescribed by the Presidential Decree due to the necessity of cultivation. Thus, the plaintiff's assertion is based on the premise that he/she directly cultivated each of the land of this case.

(2) On the other hand, Article 67 (2) of the former Enforcement Decree of the Restriction of Special Taxation Act concerning the meaning of "direct cultivation" under Article 70 (1) of the same Act provides that "a resident is engaged in the cultivation of crops or the growing of perennial plants on his own farmland or in the cultivation or cultivation with his own labor not less than half of the farming work", and a mere fact that he purchased the transferred land must be proved actively by the claimant, and even if it is acknowledged that the transferred land has been used as farmland for several years, it is not presumed that the transferor is minor (see, e.g., Supreme Court Decisions 87Nu402, Oct. 13, 1987; 94Nu996, Oct. 21, 1994).

(3) Therefore, as to whether the Plaintiff cultivated each of the instant land directly within the above meaning, it is difficult to believe that the testimony of each of the instant evidence Nos. 9, 10, and evidence Nos. 11-1 through 10, as well as witness RedB, GuCC, and Korea EE is insufficient to recognize the evidence Nos. 7, 8, 12, and 13-1 through 8, and there is no other evidence to prove it otherwise.

(4) Rather, considering the overall purport of the argument as to the fact finding of evidence Nos. 1, 2, and 9 of evidence Nos. 2 and 3 and the fact finding to the original rice market of this court, the Plaintiff is engaged in food companies, urban bus companies, etc., or in cargo transport business from May 1, 1993 to March 2003. From May 2003, the Plaintiff is driving a private taxi up to the day. Thus, even if the Plaintiff was receiving part of another’s help, it is almost impossible to directly engage in the cultivation of each land of this case or cultivate or cultivate more than half of the Plaintiff’s work using the Plaintiff’s labor, and Article 6(1) of the Act on the Preservation of Rice Income, Etc. provides that the Plaintiff’s direct payment for preserving rice income, etc. for each of the above land of this case to the farmers who directly engaged in agriculture within the period of 200 GG from May 1, 2093 to the day of 207.

3. Conclusion

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

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