A farmland subject to reduction or exemption due to substitute farmland by directly cultivating substitute farmland after acquisition thereof;

In light of the fact that the distance between substitute farmland and the Plaintiff’s residence is not far away, and that the Plaintiff is registered as the cultivator of substitute farmland in the public records, such as the Plaintiff’s business size, type, and farmland ledger, and that agrochemicals, fertilizers, etc. necessary for the cultivation of substitute farmland are purchased in the Plaintiff’s name, etc., the fact that the Plaintiff cultivated directly after acquiring substitute farmland

2013Gu 100141 Revocation of Disposition of Imposing capital gains tax

AAA

Head of Busan District Tax Office

September 6, 2013

October 11, 2013

1. On June 1, 2012, the Defendant’s imposition of the capital gains tax of 2008 against the Plaintiff shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On September 1, 2004, the Plaintiff acquired and owned a total of 15,415 square meters of each co-ownership share on six parcels, including OOO-O, O-O, and transferred it to BB on June 5, 2008.

B. On June 20, 2008, the Plaintiff filed a preliminary return on the tax base of capital gains tax on the transfer margin of the previous farmland with the Defendant on June 20, 2008, and applied Article 70(1) of the Restriction of Special Taxation Act, which is a provision on the reduction and exemption of capital gains tax on the substitute farmland as farmland price, on the ground that the said farmland price is

C. After that, on February 19, 2009, the Plaintiff purchased O-O O-O miscellaneous land 9,060 square meters (hereinafter “alternative farmland”) and completed the registration of ownership transfer.

D. However, on June 1, 2012, the Defendant denied the reduction or exemption of capital gains tax on the ground that the Plaintiff cannot be deemed as a self-fluence of substitute farmland as a result of the on-site verification survey on substitute farmland, and imposed and notified the Plaintiff on June 1, 2012 an OO (including additional tax) of capital gains tax for the year 2008 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 1, 2, 3 evidence, Eul 1, 5, and 6 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

Since the Plaintiff has cultivated farmland directly after acquiring substitute farmland, income from the transfer of previous farmland is subject to reduction of capital gains tax due to substitute farmland under Article 70(1) of the former Restriction of Special Taxation Act, but the Defendant’s disposition that did not recognize capital gains tax reduction or exemption is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) From around 1988, the Plaintiff resided in the OOO on the ground of OO in 1988, the Plaintiff operated 'CCC' at a store located in the above building from May 1, 199, and mainly sold remote areas to Dogs or as a fixed transaction place around the Dogsan Industrial Complex, the Plaintiff and the employees of the Corporation and farmers sold necessary cremation, etc.

2) 원고는 지목인 잡종지인 대체 농지를 취득한 후 개답하여 벼농사를 하고 있는데, 위 농지의 면적은 약 0.9㏊로 통계청 자료인 '재배규모별/작업별 논벼 노동력 투입시간'에 따르면 대체 농지와 유사한 면적의 농지에서 벼농사를 수행할 경우 총 노동력 투입시간은 연간 약 197시간 정도에 불과하다. 실제로 벼농사는 매년 4월경부터 9월경까지가 농번기이고 그 외의 기간은 농한기로서 다른 농사에 비하여 상대적으로 그 노동력의 투입 정도가 경미하고 상시 노동의 필요성이 적다.

3) 원고는 농기계를 따로 보유하고 있지 않아 시동생인 김DD이나 김DD이 소개한 다른 농민에게 품삯을 주고 이앙기, 콤바인 등 기계작업을 맡겼고, 수확한 쌀은 김DD의 창고에 보관하였다가 정미소에 위탁가공 후 대부분은 원고의 가족들과 친지들이 소비하였고, 일부는 미곡 소매상을 통해 처분하기도 하였다.

4) From around 2009 to 2012, the Plaintiff purchased agricultural materials, such as fertilizers and agricultural chemicals, from time to time at OFF, OFF, and agricultural chemicals located in the vicinity of alternative farmland at its own expense. The Plaintiff was registered as a substitute farmland in the farmland ledger and received subsidies for rice income preservation.

[Ground of recognition] Facts without dispute, Gap 3 through 8, 10 through 13, each entry of Eul 3-1, each entry of Eul 3-1, the realization of witness right, testimony of KimD and the purport of the whole pleadings

D. Determination

1) According to Article 70(1) of the former Restriction of Special Taxation Act (amended by Act No. 921, Jan. 1, 2010; hereinafter the same) and Article 67(1) and (2) and (3)1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21196, Dec. 31, 2008; hereinafter the same), where a person who resided in a location of previous farmland for not less than three years and cultivated the new farmland for not less than three years after acquiring another farmland within one year from the date of transfer, "where the area of new farmland to be acquired is not less than half of the area of the farmland to be transferred or a third of the value of the transferred farmland is more than a third of the value of the transferred farmland, the amount of tax equivalent to 100/100 of the transfer income tax shall be reduced or exempted, and "direct cultivation" means that a resident is engaged in cultivating or growing agricultural crops or growing plants at all times in his own capacity.

2) Based on the above legal principles, it is difficult for the Plaintiff to secure time to invest 1/2 or more of the work necessary for the Plaintiff to cultivate substitute farmland in light of the Plaintiff’s business size and business type, the size of substitute farmland, statistical values as to the work necessary for cultivating substitute farmland, etc. In this case, as to whether the Plaintiff directly cultivated substitute farmland, the following circumstances, which can be seen by the fact that the Plaintiff directly cultivated the substitute farmland, and the aforementioned evidence, are likely to easily reduce work using the farming machinery owned by the Plaintiff during the farming work, but the distance between the Plaintiff’s residential area and the Plaintiff’s residential area and the Plaintiff’s store. However, in light of the Plaintiff’s statistical values as to the size of alternative farmland, it cannot be said that it is difficult for the Plaintiff to secure time to directly purchase substitute farmland in his own name, and the Plaintiff’s 1/2 or more of the farmland as well as the farmland owned by another person, and the Plaintiff’s 2 or more of the farmland acquired substitute farmland in his own name after the purchase of substitute farmland in his own name.

3) Therefore, since the substitute farmland of this case, which the Plaintiff is deemed to have cultivated directly for not less than three years, falls under the reduction of capital gains tax pursuant to Article 70 of the former Restriction of Special Taxation Act, the disposition of this case by the Defendant prior to this different premise is unlawful

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.