Whether the farmland falls under one's own farmland for at least eight years;

The calculation of the cultivation period for inherited farmland shall be calculated from the time when the decedent acquired and cultivated the farmland, and the phrase "self-arable farmland" shall include not only the case where the decedent directly cultivates but also the case where he has had his family living or living together with the same household cultivate it.

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

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of capital gains tax of KRW 63,120,190 against the Plaintiff on October 1, 2004 shall be revoked.

3. The total costs of the lawsuit shall be borne by the defendant.

1. Details of the disposition;

A. On March 10, 1967, ○○○○○○○○○○, ○○○○, ○○○○, ○○○○○, ○○○○, ○○○, and 6,341 square meters on the ground of a completion of reimbursement under the Farmland Reform Act. After that, Kim○○ died on March 10, 1968, 3/13 of the above land on which the Plaintiff’s father (Seoul○○○○○○, and 10/13 of the remaining successors, succeeded to 13/13 of the above land.

On January 23, 1980, the inheritor of ○○ Kim has completed the registration of ownership transfer on the inheritance shares of the above land due to inheritance, and Kim○ has completed the registration of ownership transfer on the above 10/13 of the remaining inheritors due to sale on the same day.

B. On July 4, 1982, the Plaintiff died on July 4, 1982, and the Plaintiff succeeded to the entire land by way of an agreement and division of inherited property, and completed the registration of ownership transfer in the name of the Plaintiff on July 5, 1993.

C. On October 29, 1996, the above land was divided into 3,691 square meters and 2,650 square meters in ○○○○○○○, ○○○, ○○-si, ○○○○, and ○○○○.

D. On March 31, 2004, the Plaintiff: (a) sold ○○○○○○○○○○○, and subsequently sold 3,691 square meters to ○○○○; (b) filed a preliminary return on capital gains tax; and (c) filed an application for reduction or exemption of capital gains tax pursuant to the Restriction of Special Taxation Act on the ground that the said land

E. On October 1, 2004, the Defendant issued the instant disposition that imposed capital gains tax for 63,120,190 won on the part corresponding to 10/13 of 200 square meters out of 00 ○○○-ri ○○ ○○ ○, and 691 square meters (hereinafter “instant land”) owned by the remaining inheritors except for the Plaintiff’s father Kim○-○ on the ground that the Plaintiff did not own land as a result of the search and survey to neighboring residents of the instant land.

Facts without dispute over the basis of recognition, Gap evidence 1, Gap evidence 2-1, 2, 3, Gap evidence 4-1 to 7, Gap evidence 5-1, 2, Eul evidence 1 and 3

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff cultivated the instant land along with ○○○○○○○○, a neighboring ○○○○○, ○○○○○○○, which was one of the instant land, without almost getting out of the foregoing Dong Ri before being born and married. Even after having married around 1990, the Plaintiff jointly cultivated the instant land with ○○ and the Plaintiff’s father Kim ○, which was jointly cultivated with the instant land. As such, the instant disposition that imposed capital gains tax on the Plaintiff was unlawful, even though it was not later than 8 years until the time of transfer of the instant land (or from January 23, 1980 until January 22, 198), it is deemed that the time of transfer of the instant land (or from January 23, 198).

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the pleadings with respect to each of the statements in Gap evidence 2 to 11 (including each number), the testimony in the first instance court Kim ○, and the testimony in the second instance court Lee ○○, a witness in the trial court.

(1) The Plaintiff ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, prior to the division, carried out a rice shed with a 3,341 square meter.

(2) Upon the death of Kim ○, the Plaintiff’s father Kim ○ and his father Kim ○, who is the inheritor of Kim ○○○, jointly cultivated the above land. Since Kim ○ died on July 5, 1982, the Plaintiff’s mother and sold it to ○○○○ on March 31, 2004, jointly cultivated by ○○ and Kim ○○, and each year divided the grain harvested from the above land.

(3) From around 1982 to 1985, the Plaintiff served as active duty servicemen. From 1992 to 1995, the Plaintiff served as an interesting country fiber, from 1999 to 2003, and operated ○○ Industries Corporation from 1999 to 2003 after March 1, 1995.

(4) The Plaintiff, along with her mother, resided in ○○○○○○○○○○ ○○○○○ 258, her mother, was married in 1990, and went to ○○○ ○○ ○○ ○ ○○ ○ ○ ○ ○ ○ 6 December of the same year, but her mother was farming and fishing her own land. On March 31, 2004, until her mother sold the instant land to ○ ○○ ○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○○

D. Determination

The calculation of the cultivation period for inherited farmland shall be calculated from the time the decedent acquired and cultivated the farmland (Article 66(4) of the former Enforcement Decree of the Restriction of Special Taxation Act). The phrase “self-Cultivating farmland” includes not only the case in which the decedent directly cultivated but also the case in which the family members living or living together with the household have cultivated (see Supreme Court Decision 94Nu11859, Feb. 3, 1995). According to the above facts of recognition, the Plaintiff’s father, Kim ○, the father of the Plaintiff cultivated the instant land from January 23, 1980 to July 5, 1982. After the death of Kim○○, the Plaintiff’s mother sold the land to ○○○ by March 31, 2004, the Plaintiff should jointly cultivate the instant land from ○○○ to ○○○○○○, 190 to ○○, 190 to ○○, 16.6.1, 1990.

Therefore, the disposition of this case based on the premise that the Plaintiff did not own the land of this case is unlawful.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, so it is revoked and it is so decided as per Disposition with the plaintiff's claim accepted.

Relevant statutes

Restriction of Special Taxation Act (amended by Act No. 7281 of Dec. 31, 2004)

Article 69 (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

(1) With respect to any income accruing from a transfer of land prescribed by the Presidential Decree, which is directly cultivated by the resident prescribed by the Presidential Decree, for not less than eight years (not later than December 31, 2005, in case where such farmland in the agricultural promotion area under Article 32 of the Farmland Act is incorporated into the Korea Agricultural and Rural Infrastructure Corporation and Farmland Management Fund Act (hereafter in this Article, referred to as the "Korea Agricultural and Rural Infrastructure Corporation") or into the corporation prescribed by the Presidential Decree which mainly runs the agricultural industry (hereafter in this Article, referred to as the "agricultural corporation"), not later than five years, and not later than three years, in case where the farmland eligible for subsidies for managerial transfer direct payments prescribed by the Presidential Decree is transferred to the Korea Agricultural and Rural Infrastructure Corporation or the agricultural corporation not later than December 31, 2010) and is prescribed by the Presidential Decree, the tax amount equivalent to 10/100 of the transfer income tax on the income accruing from a transfer of land prescribed by the Presidential Decree, other than the land scheduled for replotting shall be reduced or exempted.

Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 18704, Oct. 19, 2005)

Article 66 (Abatement or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

(1) For the purpose of the main sentence of Article 69 (1) of the Act, the term “resident prescribed by the Presidential Decree who resides in the seat of the farmland” means a person who has cultivated while living for 8 years (including the area corresponding to the relevant area at the time of commencement of cultivation, but comes not to fall under it due to a reorganization of administrative district) or longer in the area (including the area which comes to fall under the relevant area at the time of commencement of cultivation, but comes to fall under it due to a reorganization of administrative district) which falls under any of the following subparagraphs for which the farmland subject to payment of subsidy for management transfer under paragraph (3) is transferred to the Korea Agricultural and Rural Infrastructure Corporation

1. An area in a Si/Gun/Gu (referring to an autonomous Gu; hereafter the same shall apply in this paragraph) where farmland is located;

2. An area within a Si/Gun/Gu adjacent to an area referred to in subparagraph 1.

(2) "Corporation prescribed by Presidential Decree" in the main sentence of Article 69 (1) of the Act means the agricultural partnership under Article 15 of the Framework Act on Agriculture and Rural Community and the agricultural company under Article 16 of the same Act.

(3) The term "small and medium direct payments subsidies as prescribed by the Presidential Decree" in the main sentence of Article 69 (1) of the Act means the subsidies for business transfer under Article 3-2 of the Regulations on the Implementation of Direct Payment Systems for Agricultural Products Producers.

(4) For the purpose of the main sentence of Article 69 (1) of the Act, the term “land as prescribed by the Presidential Decree” means the farmland which is subject to the payment of management transfer subsidy under paragraph (3) and has been cultivated by himself for not less than 8 years (in case of transfer to the Korea Agricultural and Rural Infrastructure Corporation or the corporation under paragraph (2), 5 years; and in case of transfer to the Korea Agricultural and Rural Infrastructure Corporation or the corporation under paragraph (2), 3 years) from the time of acquisition until the time of transfer, excluding that which falls under any of the following subparagraphs. In this case, in calculating the period of farmland cultivated

Omission of each title

Enforcement Rule of the Act on Special Cases concerning Tax Restriction (amended by Ordinance of the Ministry of Finance and Economy No. 421, Oct. 11, 2005)

Article 27 (Scope, etc. of Farmland)

(1) Farmland under Article 66 (3) of the Decree shall be the full answer and land actually used for cultivation regardless of the land category on the public cadastral book, and shall include the farming shed, compost, pumping station, pumping station, branch office, concentration, waterway, etc. directly necessary for farmland management.

(2) The confirmation of whether land falls under Article 66 (3) of the Decree shall be made in accordance with the following standards:

1. It shall be the land whose ownership for at least eight years (five years in the case of transfer to the Korea Agricultural and Rural Infrastructure Corporation established under the Korea Agricultural and Rural Infrastructure Corporation and Farmland Management Fund Act, the agricultural partnership established under the Framework Act on Agriculture and Rural Community, and the agricultural company) is confirmed by a certified copy of

2. It shall be the land which has been cultivated by the transferor while residing in the location of farmland for at least eight years (five years in the case of transfer to the Korea Agricultural and Rural Infrastructure Corporation under the Korea Agricultural and Rural Infrastructure Corporation and Farmland Management Fund Act, agricultural partnership under the Framework Act on Agriculture and Rural Community, and agricultural company) by means of a certified copy of resident registration card, a certified copy of farmland ledger issued or issued by a Si/Gu/Eup/Myeon