Incheon District Court 201Guhap3832 (25 December 2012)

Early High Court Decision 201J 1781 (Law No. 1106.30)

Since it is not possible to recognize the fact of self-reliance, it constitutes land for non-business

Considering the fact that the distance between a residential area and farmland is far away, even if a vehicle is used, a considerable time is required, and that it cannot be deemed that a police official cultivated 1/2 or more of farming works with his own labor when cultivating rice in light of the form of service and the farmland area, etc., it cannot be deemed that a farmland has been directly cultivated

2012Nu17607 Revocation of Disposition of Imposing capital gains tax

Park XX

The director of the North Incheon National Tax Office

Incheon District Court Decision 201Guhap3832 Decided May 25, 2012

December 13, 2012

January 17, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's imposition of capital gains tax of KRW 000 on March 8, 201 against the plaintiff on March 8, 201 shall be revoked.

1. Quotation of the reasons for the judgment of the first instance;

The reasons why the court should explain in this decision are as stated in the reasoning of the judgment of the first instance except for the addition of the judgment on the plaintiff's assertion in Paragraph 2 below. Thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Additional determination

A. The plaintiff's assertion

In full view of all the circumstances alleged by the Plaintiff in the appellate trial, the Defendant failed to sufficiently prove that each of the instant farmland constitutes a non-business land because the Plaintiff did not cultivate the farmland directly, and the instant disposition violates the “Guidelines for the Reduction and Exemption of Self-Cultivating Farmland Transfer Tax,” which the National Tax Service enforced since April 1, 2009, and also violates the “Guidelines for the Reduction and Exemption of Self-Cultivating Farmland Transfer Tax,” and even if compared with the cases similar to the Plaintiff, it should be revoked.

B. Determination

(1) As to the assertion that each of the instant farmland cannot be viewed as non-business land

The defendant asserts that each farmland of this case constitutes a non-business use on the ground that the plaintiff did not own own own own farmland of this case, shall be liable to prove that the plaintiff did not own own farmland of this case as provided by the relevant provisions of the Income Tax Act and the Enforcement Decree of the Income Tax Act (see, e.g., Supreme Court Decision 2010Du8423, Sept. 30, 2010). Here, "self-Cultivating" means the meaning of "self-Cultivating of farmland", i.e., cultivating crops or perennial plants on his own farmland, or cultivating or cultivating not less than 1/2 of the farming work with his own labor (see, e.g., Supreme Court Decision 2010Du8423, Sept. 30, 2010).

① As we can find out the facts cited earlier and evidence, the Plaintiff’s use of an automobile for approximately 47 minutes, even if the distance between the Plaintiff’s residence and each of the instant farmland is far away from about 23 km at the time of serving as a police official (No. 28) and the time required for the Plaintiff’s dwelling to go as each of the instant farmland, and the Plaintiff’s characteristic of the Plaintiff’s duty as a police official and the form of work, and the situation where the size of each of the instant farmland is equal to a total of 7,061 square meters (in addition to each of the instant farmland, the Plaintiff owned a dry field with a total of 3,312 square meters apart from each of the instant farmland), it is difficult to readily conclude that the Plaintiff’s use of the instant farmland for at least 20 days from 197 to 208, as the Plaintiff’s use of the said farmland for at least 12-day total of 12-day rice consumption from each of the instant farmland, and thus, it is difficult to readily conclude that the Plaintiff’s use of the Plaintiff’s labor force.

(2) As to the assertion that the instant disposition violates the National Tax Service’s guidelines, etc.

In light of the above facts, the plaintiff's disposal of this case cannot be concluded to have been in violation of the above guidelines only with the evidence and the circumstances of the plaintiff's assertion that it had already been transferred before April 1, 2009, the guidelines as alleged above were enforced. Further, the "internal guidelines to determine the standards for the performance of duties or the interpretation and application of Acts and subordinate statutes" generally effective within the administrative organization, and it does not have external binding power, and it does not immediately mean that any administrative disposition violates the above internal guidelines (see Supreme Court Decision 2009Du7967, Dec. 24, 2009) and ② The evidence submitted by the plaintiff alone cannot be readily concluded that administrative practices were conducted with land recognized as business before the disposition of this case, and thus, it cannot be seen that the above disposition of this case violated the above guidelines with respect to the plaintiff's farmland within the scope of 1308, and thus, it cannot be seen that there were no reasonable circumstances that the plaintiff's disposal of this case was in violation of the above guidelines with respect to the plaintiff's farmland.

3. Conclusion

Thus, the plaintiff's appeal is dismissed as it is without merit.