The burden of proof for the direct cultivation of the transferred land is the taxpayer who asserts the reduction or exemption of the transfer income tax.

The plaintiff is presumed to be only a person who indirectly engaged in agriculture by entrusting the land of this case, by surrogate cultivator, or by concentrate on another occupation.

Article 69 of the Restriction of Special Taxation Act for Self-Cultivating Farmland

2017Gudan6765 Revocation of Disposition of Imposing capital gains tax

○ Kim

○ Head of tax office

December 6, 2017

December 20, 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 imposition of capital gains tax of KRW 00,00,000 for the year 2012 against the Plaintiff on January 15, 2016 and the imposition of capital gains tax of KRW 000,000 for the year 2013 are revoked, respectively.

1. Details of the disposition;

A. On December 30, 2003, the Plaintiff acquired and possessed 00 m2,00 m2,000 m2,000 m2,000 m2,000 m2,000 m2,0000 m2,000 m2 (hereinafter “each of the instant lands”) and transferred on February 29, 2012 the remainder of each of the instant lands (hereinafter “the instant land”) on May 28, 2013.

B. As of January 15, 2016, the Defendant: (a) calculated the transfer value of the instant land as KRW 00,000,000 for the Plaintiff on the ground that the Plaintiff did not report and pay the transfer income tax on each of the instant land; (b) calculated the transfer value of the said land as KRW 00,000,000 for the converted value; and (c) determined and notified the transfer value of KRW 00,000 for the said land as of KRW 2,000 for the said land; and (d) calculated the transfer value of KRW 00,000 for the said land as of KRW 00,000 for the converted value; and (e) determined and notified the transfer value of KRW 00,000 for the transfer income tax for the year 2013.

C. The Plaintiff appealed and filed an objection against the Defendant on April 25, 2016. The Defendant applied the acquisition value of each of the instant lands as the actual transaction value, thereby reducing the transfer income tax for the year 2012 as KRW 00,000,000, and the transfer income tax for the year 2013 as KRW 00,000,000 (hereinafter referred to as the “disposition for imposition of transfer income tax for the year 2012 as of January 15, 2016 remaining after such reduction,” respectively, and “Disposition for imposition of transfer income tax for the year 2012 as of the same date,” and “Disposition for imposition of transfer income tax for the year 2013 as of the same date,” respectively.

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on September 2, 2016, but was dismissed on December 5, 2016.

1) According to a certified copy of the real estate register (A) the land category at the time was 'the answer'. In fact, among co-owners, the co-owners acquired part of their shares from thisA, or since both parties indicate the changed land category and the actual area after the convenience, they refer to the subject real estate. The same applies to this.

[Reasons for Recognition] Each entry in Gap, 2, 8, 9, Eul 1 through 5, 7, and 11 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff acquired each of the instant lands for at least eight years, the Defendant’s disposition that did not recognize the said land as being subject to reduction or exemption of self-farmland should be revoked as unlawful.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) The former Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015; hereinafter the same shall apply)

C) Article 69(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26070, Feb. 3, 2015)

According to Article 66(1) and (13) of the Act, in order to be exempted from capital gains tax, 8.

For more than a year, the Si/Gun/Gu where the relevant farmland is located, and the Si/Gun/Gu adjacent to the relevant farmland location;

A person who resides in an area within 20km in a straight line from the station or the farmland and directly resides therein.

The term "direct cultivation" at this time means the cultivation of crops in the farmland owned by the resident.

Persons engaged in cultivating or cultivating perennial plants at all times or at least 1/2 of farming operations;

It means the cultivation or cultivation with labor force. Here, ‘one-half or more own labor force’

The meaning of the Supreme Court Decision 2012Du19700 Decided December 27, 2012 shall be interpreted as grammatic interpretation (Supreme Court Decision 2012Du19700 Decided December 27,

(see, e.g., the company that directly cultivated the transferred land as a requirement for reduction or exemption of capital gains tax for self-arable farmland.

The burden of proving actual burden of proof is against a taxpayer who asserts the reduction or exemption of capital gains tax (see, e.g., Supreme Court Decision 94Nu996, Oct. 21, 1994).

2) We examine the instant case in light of the aforementioned legal principles. In full view of the aforementioned evidence, the following circumstances acknowledged by the overall purport of each of the statements and arguments in Eul 6, 8 through 10, and 12 through 19 (including various numbers), it is insufficient to acknowledge that the Plaintiff was engaged in the cultivation of agricultural crops or directly in the cultivation of 1/2 or more of the farming works with its own labor for not less than 8 years prior to the transfer of each of the instant land, namely, the evidence, such as the testimony of Lee Jae-A or the confirmation of the fact of cultivation submitted by the Plaintiff, etc., under the former Restriction of Special Taxation Act.

○ Article 69 of the former Restriction of Special Taxation Act is reasonable to strictly interpret the words in that the provisions of Article 69 of the former Restriction of Special Taxation Act can be abused as a means of tax evasion in that the residents in the seat of farmland have cultivated land directly for at least eight years to protect farmers by lowering the tax burden and to promote the development and encouragement of agriculture.

The Plaintiff asserts that dry field crops directly cultivated on each land of the instant case, along with the spouse or the other co-owners of EA, such as spath, spath, spath, bean, and math, etc. However, even according to the Plaintiff’s own assertion, the Plaintiff did not register on the farmland ledger because the area of cultivation is not wide, and did not purchase agricultural materials directly from the agricultural cooperatives, etc., and in fact, did not submit all the documents related to the purchase of seeds necessary for cultivating dry field crops, such as drilling and spath, materials, and expenses, or the documents related to the possession or distribution of crops and plants possessed or harvested by farming machines, etc.

○○ Moreover, the Plaintiff’s spouse engaged in the category of construction business from around 2003 to 2006, while residing in the Plaintiff and the Plaintiff’s 00:00 Eup/Myeon, and KimB stated to the Defendant that he had tried to work as a farmer together with the other co-owners of the instant land (not the Plaintiff) other co-owners. In light of the circumstances recognized by the tax authority after this AA transferred his own land shares adjacent to each of the instant land, it is difficult to accept the allegation that the Plaintiff was a dry field farmer with his spouse or other co-owners.

In addition to ○○, the Plaintiff had three times of the possession period of each of the instant lands (hereinafter referred to as “the possession period”) and had three times of resident registration, but all of the above lands were residing in the apartment complex which is a common house, from June 27, 2006 to February 5, 2009, the Plaintiff’s domicile was the location of the Plaintiff’s place of residence, and “unscambling” means the Plaintiff’s business registration regarding the clothing repair service business. At least 19 times of the retention period, there exists an entry or departure record at least 19 times during the retention period, and on September 13, 2006, the Plaintiff acquired 0000 00 00 00 m2,000 m2,000 m2, which had been transferred on February 12, 2014.

In light of the above overall circumstances, it is difficult to believe that the testimony of the witness EA or the confirmation of the fact of cultivation by KimB, etc., which seems to conform to the plaintiff's assertion, is difficult as it is. It is only presumed that the plaintiff is merely a person entrusted with the cultivation by proxy, KimB, etc. or engaged in the agriculture indirectly by transferring to another occupation.

3) Therefore, the Plaintiff’s assertion cannot be accepted, and the instant disposition is lawful.

3. Conclusion

The plaintiff's claim is dismissed. It is so decided as per Disposition.