Cho Jae-2016-China3629 (Law No. 19, 2017)

The difference between the plaintiff's residence and farmland, the existence of employment income, etc., lack of self-Evidence.

The farmland shall not be directly cultivated, such as that the distance between the place of residence and farmland is a long distance, lack of evidence that the farmland has been cultivated directly, and that there has been no earned income continuously.

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

2017Guhap50636 Revocation of Disposition of Imposing capital gains tax

AA

BB Director of the Tax Office

November 21, 2017

December 26, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 66,849,280 for the Plaintiff on June 14, 2016 shall be revoked.

1. Details of the disposition;

A. On June 23, 1992, the Plaintiff inherited 6 square meters prior to 00-0 square meters in ○○○○○○○, ○○○○○○, 00-0, and completed the registration of ownership transfer on January 20, 1993.

B. On November 13, 2001, the Plaintiff completed the registration of ownership transfer with respect to 2548/3870 square meters with respect to 52-1, 3870 square meters in the same Ri on November 13, 2001. The said land was divided into 52-5, 1322 square meters in the same Ri on February 1, 2008, and 52-1, 2548 square meters in the same Ri on June 15, 201, and the Plaintiff received the registration of ownership transfer for the remaining 1322/3870 square meters in the same Ri on June 15, 201, on the ground of co-owned property division as to the remaining 1322/3870 square meters in the same Ri 52-1, 2548 square meters in the same Ri 52-1, 514 square meters in the same Ri 52-14 square meters in the same way, and 25252-244,25.

C. The Plaintiff completed the registration of ownership transfer with respect to the land Nos. 1 and 3 on July 24, 2014, and with respect to the land No. 2 on September 17, 2014, respectively (hereinafter “each of the instant land”) in the Republic of Korea (the Ministry of Land, Infrastructure and Transport).

D. On November 27, 2014, the Plaintiff directly cultivated each of the instant land to the Defendant for at least eight years, and applied for reduction or exemption of capital gains tax.

E. The Defendant decided and notified that the Plaintiff would pay KRW 66,849,280 to the Plaintiff on June 14, 2016, by excluding the application of the capital gains tax reduction and exemption provisions on self-Cultivating farmland, on the ground that it is difficult to view that the Plaintiff continued to reside in the instant land in approximately 65 km away from each of the instant land, and that each of the instant land was directly cultivated for at least eight years (hereinafter “instant disposition”).

F. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on September 16, 2016, but was dismissed on January 19, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3 (including branch numbers for those with additional numbers; hereinafter the same shall apply), Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff resided in ○○○○○○○ 49 (hereinafter referred to as “the instant residential area”) nearby each of the instant land and left a farmer with his mother. In light of the characteristics of the high-speed agriculture, income generated from each of the instant land was received benefits by entering a DNA machinery (hereinafter referred to as “DD machinery”) located inCC as it is difficult to maintain a living by itself. However, it did not interfere with the self-sufficiency of each of the instant land because it was not always on a regular basis but on a regular basis at least 1 to 2 occasions per week. As the Plaintiff cultivated each of the instant land for at least eight years, the Plaintiff met the requirements for reduction and exemption of capital gains tax.

B. Determination

1) Article 69(1) of the former Restriction of Special Taxation Act and Article 66(1) and (13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26070, Feb. 3, 2015) stipulate that a resident shall directly cultivate the relevant farmland while residing in a Si/Gun/Gu (referring to an autonomous Gu; hereinafter the same shall apply) where the relevant farmland is located or in a Si/Gun/Gu adjacent thereto, or in an area within 20 km in a straight line from the relevant farmland for at least eight years in order to have the capital gains tax reduced or exempted (see, e.g., Supreme Court Decision 2010Du98423, Sept. 30, 2010). The meaning of “direct cultivation” refers to a resident who is engaged in cultivating or growing crops or perennial plants on his/her own farmland, or cultivating or growing them with his/her own labor. The meaning of “a person liable to pay capital gains tax” should be interpreted as per gram.

2) According to Gap evidence Nos. 1, 4, and 12, Eul evidence Nos. 5, and witness EE testimony, the plaintiff stated in the farmland ledger (Evidence No. 6) the purport that the plaintiff himself/herself does not own the land of this case. On September 1, 2014, EE prepares a certificate of de facto cultivation that the plaintiff is engaged in farming while cultivating each of the land of this case from April 2006 to September 201, and around September 2014, the plaintiff entered the above EE and Ban FF in the residence of this case with his/her mother in May 193, 193, with his/her farmland generation revenue, and entered his/her place of work and confirmed the fact that the plaintiff cultivated each of the land of this case in the farmland ledger (Evidence No. 5) with his/her trader No. 307,30,000,000,000 won for each of the land of this case, and entered into a contract with the plaintiff No. 13G 2930,25,200,25.8.G.

3) However, in full view of the following circumstances acknowledged by the aforementioned evidence and the purport of the entire statements and arguments set forth in subparagraphs 3 through 5 above, it is insufficient to acknowledge that the evidence submitted by the Plaintiff alone was “the Plaintiff was engaged in the cultivation of crops for not less than eight years or directly cultivating with his own labor for not less than 1/2 years,” and there is no other evidence to acknowledge this otherwise, and the Plaintiff’s assertion is without merit without any need to examine further.

A) The farmland ledger (No. 6) is an administrative internal data prepared and kept for the management of farmland and the efficient implementation of agricultural policies, and it is difficult to view that administrative authorities directly verified the fact of the Plaintiff’s cultivation and prepared the farmland ledger as it is difficult to view that the entries were made. Even if following the entries in the farmland ledger, the initial preparation date was made on April 26, 2006. Furthermore, according to the farmland ledger, the Plaintiff stated that the ownership of 46,572 square meters of farmland, including the farmland No. 2 and 3 of this case, and the ownership of 13 square meters of farmland, including farmland No. 19,798 square meters of 13 square meters of such farmland, and it is difficult to readily conclude that the Plaintiff directly cultivated each of the above farmland.

B) There is no evidence to acknowledge that the Plaintiff purchased agricultural products for about 4 years, including the Plaintiff’s agricultural chemicals, which can be confirmed by each trader’s sales (Evidence A No. 10). The purchase period from January 1, 2005 to December 31, 2007 (from January 1, 2007, from January 1, 201 to December 31, 2010) and from January 1, 201 to December 31, 2010, other than the submission of a simplified receipt with the purport that the Plaintiff purchased one (one (one) and one (one (one) powder from the J seedlings on May 15, 2006, it cannot be recognized that the Plaintiff purchased agricultural products for about 8 years, including the entire deposit amount of the Plaintiff’s assertion.

C) In this court, the witness EE viewed the Plaintiff to cultivate the instant land Nos. 2 and 3 from around 1998, and stated to the effect that the Plaintiff’s mother was living together with the Plaintiff. It is insufficient to find that the content alone is insufficient to recognize that the Plaintiff did not own each of the instant land.

D) Since the Plaintiff moved intoCC on November 24, 1995, the resident registration has been made at the time ofCC until now, and his family members also have the move-in report at the same domicile as the Plaintiff. The Plaintiff received the amount of KRW 2,1810,000 through KRW 35,577,000 per annum from D D Machinery at the time of construction business from 2002 to 2013,000 to 2013.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.