Cho High 201-Gu0058 (Law No. 29, 2011)

The farmland has been recognized as having been self-incompetentd for not less than eight years together with his spouse.

농지 인근에서 미용실을 운영하였으나 소득이 미미하고 이웃들이 주 고객으로 농사일이 바쁠때는 영업을 하지 않을 수도 있었던 점, 배우자는 전문농업인으로 농기계를 소유하여 농지의 경작을 도왔던 점, 이웃들이 농지의 경작사실을 확인하는 확인서를 제출한 점에 비추어 배우자와 함께 농지를 8년 이상 자경한 것으로 봄이 상당함

Article 69 of the Restriction of Special Taxation Act

Article 66 of the Enforcement Decree of the Act on the Restriction of Special Taxation

2011Guhap2400 Revocation of Disposition of Imposing capital gains tax

LAA

Head of Namgu Tax Office

April 13, 2012

May 2, 2012

1. The Defendant’s imposition of capital gains tax of KRW 000 against the Plaintiff on July 8, 2010 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On June 1, 200, the Plaintiff owned a O00 00 mix 1,656 mix and 000 mix 1,167 mix 1,167 mix mix (hereinafter collectively referred to as “the instant farmland”) from her husband KimCC on a gift from her husband KimCC, and sold 00 mix o0 on April 29, 2009 to her husband.

B. On June 30, 2009, the Plaintiff filed an application for reduction or exemption of capital gains tax pursuant to Article 69(1) of the former Restriction of Special Taxation Act (wholly amended by Act No. 9921, Jan. 1, 2010; hereinafter “former Restriction of Special Taxation Act”) and Article 66 of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 21565, Jun. 26, 2009; hereinafter “former Enforcement Decree of the Restriction of Special Taxation Act”). However, the Defendant did not accept the above application and notified the Defendant of the advance payment of capital gains tax of KRW 00,000 on April 2, 2010, and imposed capital gains tax of KRW 00 on July 8, 2010 (hereinafter “instant disposition”).

C. On July 28, 2010, the Plaintiff filed an objection with the Director of the Daegu Regional Tax Office. On September 7, 2010, the Director of the Daegu Regional Tax Office rendered a decision to re-examine whether or not the Plaintiff’s self-defluence was the Plaintiff and to correct the amount of imposition. However, the Defendant rendered a decision to maintain the instant disposition on October 29, 2010.

D. The Plaintiff filed an appeal with the Tax Tribunal on December 6, 2010, but was dismissed on April 29, 201.

[Ground of recognition] Unsatisfy, Gap evidence 1 through 9, Eul evidence 1, 2, 4, 5, 11

Statement, the purport of the whole pleading

2. The parties' assertion

A. The plaintiff's assertion

Since the marriage with KimCC in 1994, the Plaintiff was directly cultivated with the farmland in this case for more than eight years, and thus constitutes an object of exemption from capital gains tax, and the disposition in this case is unlawful.

B. Defendant’s assertion

After the Plaintiff donated the instant farmland from KimCC, the Plaintiff and KimCC continued to grow separately because it is not good for them, and the instant farmland was cultivated independently by KimCC, so it cannot be deemed that the Plaintiff did not have done so during the ownership period of the instant farmland. Therefore, the instant disposition is lawful.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. Article 69(1) of the former Act on Special Cases concerning Taxation Restriction, Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act, and Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act include not only cases in which a person directly cultivates, but also cases in which a person is employed to cultivate another person under his/her own account and responsibility, or causes a family member living or living together with the same household to cultivate (see, e.g., Supreme Court Decisions 89Nu7412, May 11, 1990; 94Nu96, Oct. 21, 1994); and even if a person directly engages in another occupation while concurrently engaged in another occupation, he/she constitutes a self-employed farmer (see, e.g., Supreme Court Decision 98Du9271, Sept. 22, 198).

B. In light of the following circumstances, it is reasonable to view that the farmland of this case constitutes an exemption from capital gains tax under Article 69(1) of the former Restriction of Special Taxation Act, and thus, the farmland of this case constitutes an exemption from capital gains tax under Article 69(1) of the former Restriction of Special Taxation Act, and thus, the disposition of this case is unlawful, and thus, the Plaintiff’s assertion is justified. The Plaintiff’s assertion is with merit.

(1) 원고는 이 사건 농지를 증여받기 약 6개월여 전부터 이 사건 농지로부터 1.6km 정도 떨어진 인근에서 미용실을 운영하며 그곳에 거주하였다. 원고가 운영한 미용실의 연간 소득은 가장 많았을 때가 000원이고, 2000년과 2007년에는 수입이 전혀 없었으며, 2000년부터 2009년까지의 평균 연소득이 000원에 불과하므로 위 미용실의 운영 때문에 원고가 농사일을 할 수 없었다고는 보기 어려울 뿐만 아니라, 위 미 용실은 시골마을의 미용실로서 이웃들이 주된 고객이기 때문에 농사일이 바쁠 때에는 미용실 영업을 하지 않을 수도 있었다.

(2) Since the area of the farmland in this case is not larger than 2,823 square meters in total, the Plaintiff was able to cultivate the farmland in full with her husband KimCC’s aid. The KimCC purchased agricultural materials, such as fertilizers, agricultural chemicals, etc., from 205 to 2009 and used them for the cultivation of the farmland in this case by purchasing KRW 00 of agricultural materials, such as fertilizers, agricultural chemicals, etc., for the purpose of obtaining benefits from the Plaintiff’s local successor. However, in a case where the farmland in this case is not bad, the farmland in this case was located in the Plaintiff’s place of residence. The KimCC, as a professional farmer, had been in possession of agricultural machinery, such as strawers, agricultural pumping, agricultural pumping, power-driven machines, and grains, and purchased oil with a tax-free petroleum card. From 2005 to 2009, KimCC purchased agricultural materials, such as fertilizers, agricultural chemicals, etc., and used them for the cultivation of the farmland in this case.

(3) Many neighbors of the Plaintiff, as the Plaintiff’s husband KimCC, filed a written confirmation confirming the fact that they lived together with the instant farmland and cultivated the instant farmland. On the ground that the Plaintiff’s assertion appears to be against the Plaintiff, OOri Hahh was aware of the fact that the Plaintiff’s husband appeared in this court and the Plaintiff’s husband appeared together with the instant farmland, but the Defendant’s employees did not have been able to receive a punishment for perjury for the past five years, and that the Defendant’s employees did not know that they were living together and cultivated the instant farmland for the last five years, the document of confirmation (No. 15-2), Kim LL’s confirmation (No. 15-3) and the document of confirmation (No. 15-3) are nothing more than that of the Plaintiff or the instant farmland.

5. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.