Incheon District Court 2009Gudan1331 (2010.02.04)

early 209 Heavy0288 (2009.04.08)

Reduction of or exemption from capital gains tax for self-Cultivating farmland for at least eight years;

It is difficult to view that there was no evidence to deem that a university has worked as a professor holding concurrent positions in the university, there was no data to deem that the university owned the farming equipment or farming machinery necessary for cultivating the land, a significant portion of the land was leased, and the compensation was planted as a long-term nursery, and that the compensation was paid to others for eight

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

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1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked, and the defendant revoked the disposition of imposition of capital gains tax of KRW 111,910,000 for the plaintiff on July 10, 2008.

쇠鹬 쇠鹬 3000 쇠鹬 3000

1. Details of the disposition;

The following facts are not disputed between the parties, or each entry in Gap evidence Nos. 1, 2, Eul evidence No. 1, and Eul evidence No. 2-1, and Eul evidence No. 2-2, and the whole purport of the pleadings are acknowledged.

A. On December 12, 1988, the Plaintiff, who was donated the land of 2,552 square meters (hereinafter referred to as “the farmland of this case”) from the Dong KimA, the Plaintiff’s assistance division, BB, Da-dong D 66, 26,552 square meters (hereinafter referred to as “the farmland of this case”) to the Korea Housing Corporation on June 9, 2006.

B. On May 31, 2007, the Plaintiff, while filing a preliminary return on the tax base of the transfer income tax for the year 2006 following the transfer of the farmland in this case, directly cultivated the farmland in this case for at least eight years, and applied for reduction or exemption of transfer income tax under Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 9276, Dec. 29, 2008).

C. On July 10, 2008, the Defendant deemed that the Plaintiff did not directly cultivate the farmland of this case for not less than eight years and imposed a disposition of KRW 111,910,000 on the Plaintiff for capital gains tax belonging to the year 2006 following the transfer of the farmland of this case (hereinafter “instant disposition”).

D. On January 23, 2009, the Plaintiff appealed to the instant disposition and filed an appeal with the Tax Tribunal, but on April 8, 2009, the said appeal was dismissed.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff asserts that the "direct cultivation" under Article 69 (1) of the former Restriction of Special Taxation Act includes not only the case in which the plaintiff cultivated himself, but also the case in which the plaintiff had his family living or living together with him, and that the plaintiff cultivated the farmland of this case on behalf of the plaintiff from 1988 to 2006, when the plaintiff transferred the land of this case from 1908 when he was donated the farmland of this case, the plaintiff's father, Kim FF, the father of the plaintiff, cultivated the farmland of this case on behalf of the plaintiff, and therefore, the disposition of this case in this case is unlawful.

B. Relevant statutes

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

C. Determination

(1) The meaning of "direct cultivation of farmland," which is a requirement for capital gains tax reduction or exemption under the former Act on Special Cases concerning Taxation Restriction.

(A) Article 69(1) of the former Restriction of Special Taxation Act and Article 66(1) and (12) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 20620 of Feb. 22, 2008) provide that in order for a transferor to be subject to the reduction of or exemption from the income tax on his own farmland, the transferor shall be recognized to have cultivated directly for not less than eight years from the time he acquired the pertinent land while residing in a Si/Gun/Gu where the farmland is located or in a Si/Gun/Gu adjacent thereto, or in a Si/Gun/Gu adjacent thereto, where the transferor acquired the said land, and the "direct cultivation" means that the transferor is constantly engaged in cultivating the crops or growing perennial plants on his own farmland or cultivating or growing them with his own labor.

Meanwhile, Article 2 subparagraph 5 of the Farmland Act (the above provision has been enacted by Act No. 4817 of Dec. 22, 1994) provides that "self-cultivation" means that "a farmer is constantly engaged in the cultivation of crops or the growing of perennial plants in his/her own farmland, or cultivating or cultivating not less than one half of the farming works with his/her own labor, or an agricultural corporation cultivates crops or growing perennial plants in its own farmland."

(나) 위와 같은 각 규정의 의미와 '직접 경작'은 '자경(自鏡)'의 사전적 의미와 부합하고 구 조세특례제한법 제69조의 조문 명칭은 '자경농지에 대한 양도소득세의 감면'으로 자경이라는 표현을 쓰고 있는 점, 입법 연혁을 살펴보면 구 소득세법(1993. 12. 31. 법률 제4661호로 개정되기 전의 것) 제5조 제6호 라목에서 '양도할 때까지 8년 이상 계속하여 자기가 경작한 토지로서 농지세의 과세대상(비과세 ・ 감면과 소액부정수의 경우를 포함한다)이 되는 토지 중 대통령령이 정하는 토지의 양도로 인하여 발생하는 소득'을 비과세소득으로 규정하여 8년 이상 자경농지를 양도하는 경우 양도세를 전액 비과세하였던 것을, 양도세감면종합한도의 적용을 받도록 하기 위하여, 위 조항을 삭제 하고 구 조세감면규제법(1993. 12. 31. 법률 제4666호로 전문개정되었다가 1998. 12. 28. 법률 제5584호 조세특례제한법으로 전문개정되기 전의 것) 제55조에서 '8년 이상 계속하여 직접 경작한 토지로서 농지세의 과세대상(비과세 ・ 감면과 소액부징수의 경우를 포함한다)이 되는 토지 중 대통령령이 정하는 토지의 양도로 인하여 발생하는 소득' 에 대하여는 양도소득세 또는 특별부가세를 면제하는 규정을 신설한 것인 점 등을 종합적으로 고려하면, '자경'과 '직접 경작'은 농지 소유자 주도형 경작을 보호하거나 장려하기 위한 입법 목적을 실현하기 위한 동일한 개념이라고 할 것이고, 여기에서 농지를 '자경'하거나 '직접 경작'한다고 함은 자기가 직접 경작하는 경우뿐만 아니라 생계나 세대를 같이하는 가족으로 하여금 경작케 한 경우도 포함한다고 할 것이다(대법원 1995. 2. 3. 선고 94누11859 판결 참조).

(2) Whether the Plaintiff directly cultivated the farmland of this case

We examine whether or not the plaintiff is engaged in the cultivation of "direct cultivation" in the farmland of this case, that is, the cultivation of crops or the growing of perennial plants, or whether or not the plaintiff has cultivated or cultivated 1/2 or more of the farming works with his own labor.

(A) According to Gap evidence Nos. 5-1 through 9, Gap evidence Nos. 7-1 through 3, Gap evidence Nos. 8 through 13, and Gap evidence Nos. 15 through 17, KimF, the father of the plaintiff and the plaintiff, was registered as a resident in the neighboring farmland of this case from the time when the plaintiff donated the farmland of this case to the day of transfer of the farmland of this case. The above KimF joined the Busan Agricultural Cooperative on March 30, 1992, and again joined the association on July 20, 206 after the withdrawal of the above association on July 20, 2006, after KimF entered the above 1 to 13, 2005 to 6, 1 to 8, 2005 to 6, 1 to 6, 200, 2 to 5, 1 to 5, 6, 2, to 5, 6, 2, to 5, 6, 7, 2, 7, 5, 5, Ga, etc. of this case farmland.

(B) On the other hand, comprehensively taking account of the following facts: Gap evidence Nos. 14, Eul evidence Nos. 5 through 7, Eul evidence Nos. 8-1, and Eul evidence Nos. 8-2 and the fact-finding results with respect to the head of Incheon Regional Headquarters of the court of first instance, the plaintiff was 1984 students and did not participate in farmland cultivation from the time of acquiring the farmland of this case until the time of transfer; KimF operated gold bath bath from 1986 to 2004; Hyundai Housing Co., Ltd. from 1986 to 1992; from 2002 to 2005, from 2002 to 2007 to 2007, the plaintiff was able to receive part of the farmland of this case from 1984 to 205 to 205 to 205 to 200 to 205 to 200 to 200 to 207 to 30,200.

(C) The plaintiff himself cannot be deemed to have cultivated the farmland of this case unless the plaintiff was involved in the farmland cultivation as a student status from the time of acquiring the farmland of this case until the time of transfer, and the plaintiff himself cannot be deemed to have cultivated the farmland of this case, and the KimF, who had already been in possession of farmland of this case as a business entity or a company operating or working as a professor, is deemed to have cultivated the farmland of this case, including the farmland of this case, excessively wide size of the farmland of this case, and prove that KimF directly cultivated the farmland of this case. The purchase specifications of agricultural chemicals, fertilizers, farming materials, etc. presented as evidence that KimF directly cultivated the farmland of this case were purchased from the Domin Agricultural Cooperatives located at BB, which is irrelevant to the farmland of this case. The fact that the compensation was made for obstacles to the farming facilities, and fruit trees on the farmland of this case cannot be confirmed by the fact that the plaintiff directly cultivated the farmland of this case, and rather, in light of the circumstances and contents of free lease, it cannot be seen that there was no evidence that the plaintiff directly used the farmland of this case, or no other evidence.

(D) On this ground, the Plaintiff: (a) did not directly cultivate the instant land as a student status when the Defendant originally donated the instant land to the Plaintiff; (b) did not grant a reduction or exemption of transfer income tax on the ground that the Plaintiff’s father, KimP, who was his father, did not meet the requirements for self-defense; and (c) asserted that not only the Plaintiff but also the Plaintiff’s denied KimF, cannot be deemed to have cultivated the instant land; (b) it is not permitted as a ground for disposition modification; (c) it is difficult to conclude that the Defendant, while recognizing the surrogate F’s surrogate cultivator’s act of cultivation at the time of the instant disposition, did not accept the Plaintiff’s application for reduction or exemption of transfer income tax; (d) the instant disposition did not specify the grounds leading to the instant disposition; (d) based on the Plaintiff’s submission data on KimF’s cultivation and confirmation of facts on Kim FF’s cultivation; and (d) further, in an appeal seeking revocation of administrative disposition, the Defendant did not accept the instant disposition within the scope of the Plaintiff’s basic grounds for farmland cultivation, including the Plaintiff’s basic grounds for 204.

D. Sub-committee

Ultimately, the Plaintiff’s assertion based on the premise that the Plaintiff cultivated the farmland of this case for not less than eight years is without merit, and the disposition of this case is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.