Early High Court Decision 2008Du1953 ( December 19, 2008)

Whether such farmland constitutes an exemption from capital gains tax for at least eight years;

Considering the fact that the payment of health insurance benefits and the use of card was made in a certain area and the applicant's business income was generated during the farmland retention period, it is difficult to see that the claimant resided in the farmland location and directly cultivated the farmland.

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 227,55,410 on March 7, 2008 against the Plaintiff is revoked (it appears that KRW 227,55,412 on December 6, 2007 and KRW 227,55,412 on December 6, 2007, written in the written complaint’s claim, appears to be erroneous).

1. Circumstances of the disposition;

가. 원고는 다음과 같이 안산시 ◎◎구 ★★★동 570 전 2,866㎡, 같은 동 1,291 전 1,183㎡(이하 통틀어 '이 사건 농지'라고 한다.)를 부 고☆☆로부터 증여받은 후 정○○과 백●●에게 각 양도하였다.

B. On August 6, 2007, the Plaintiff reported the transfer income tax to the Defendant on the ground that the farmland in this case was self-sufficient for not less than eight years and the transfer income tax was reduced or exempted.

C. On March 7, 2008, the Defendant issued a correction and notification of KRW 227,55,410 of the transfer income tax reverted to the year 207 (hereinafter “instant disposition”) on the ground that the Plaintiff was only the Plaintiff’s resident registration at Ansan-si Loan Dong 1361 (hereinafter “the domicile of this case”) and actually resided in Incheon and cannot be deemed to have neglected the farmland of this case (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 2, 2008, but was dismissed on December 19, 2008.

[Ground of recognition] Facts without dispute, Gap evidence No. 1, Gap evidence No. 4-1, 2, Eul evidence No. 1, the purport of the whole legal theory

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's principal

The Plaintiff has cultivated the farmland of this case as a spaw field for not less than eight years from the date of acquisition to the date of transfer, and thus the transfer income tax should be reduced or exempted.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Article 69(1) of the Restriction of Special Taxation Act (amended by Act No. 9276 of Dec. 29, 2008), Article 66(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21565 of Jun. 26, 2009), and Article 66(12) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21307 of Feb. 4, 2009) provide that in order for the transferor to be eligible for reduction of capital gains tax, he/she shall be recognized that the transferor has resided in a Si/Gun/Gu where the farmland is located or a Si/Gun/Gu adjacent thereto, where the transferor owns the farmland, and has cultivated the farmland directly for eight or more years from the time of acquiring the relevant land until the time of transfer. "Direct farming" means that the transferor is constantly engaged in cultivating or cultivating crops or perennial plants with his/her own labor, or has cultivated or cultivated it with his/her own labor.

(2) (A) According to the respective statements in Gap evidence 2, 9, 10, 11, 14, and Gap evidence 15-1 through 6, Gap evidence 16-1, and Gap evidence 23-1 through 3, the plaintiff completed the moving-in report to the domicile of this case, which is the neighboring farmland, on February 17, 1987, and registered as a resident in this area up to the present day. According to the farmland ledger prepared by the head of Ansan-si, Ansan-si, the plaintiff was registered as a person eligible for direct payments for preserving rice income, etc., and received subsidies from around 201, the housing electric utility charges for the housing located in the residence of this case were imposed in the future on the plaintiff, and the agricultural production center requested the plaintiff to attend the new farming design education in the city of Ansan-si, 208, and the fact that the plaintiff sent the notice to the plaintiff as the mail of this case.

(나) 그러나 다른 한편 갑 제17호증의 2 내지 5, 을 제3, 5 내지 7호증의 각 기재에 변론 전체의 취지를 종합하면, 원고는 1992년경부터 이 사건 농지를 양도할 무렵인 2007년경까지 인천에서 ◇◇건기, ◆◆룸싸롱 홈모텔 보성종합목재의 상호로 건설업, 음식ㆍ숙박업, 도매업 등을 운영한 것으로 사업자등록이 되어 있던 사실, 원고의 처와 자녀는 1994. 10. 19.경까지 이 사건 주소지에 주민등록이 되어 있다가 그 후에는 인천으로 전입한 것으로 되어 있는 사실, 이 사건 농지 인근에 거주하는 이장 홍□□, 농지 위원 박■■은 세무당국의 현지출장 조사에서 원고는 농사철에 잠깐 내려와서 고☆☆의 농사일을 도와주고 간다고 진술한 사실, 이 사건 주소지로 청구된 전기요금고지서 중 농사용 전력의 사용자는 고☆☆로 등록되어 있고 1999년경부터 고☆☆의 은행계좌에서 자동이체의 방법으로 농사용 전력요금이 출금된 사실, 국민건강보험공단의 2002. 1. 1.부터 2007. 9. 30.까지의 건강보험 요양급여내역에 의하면 원고는 총 29건 중 27건의 진료를 인천지역에서 받은 것으로 확인되는 사실, 원고가 이 사건 주소지에서 수령하였다고 주장하는 우편물 중 등기우편물의 경우 그 종적조회의 결과 고☆☆나 이△△가 수령인으로 되어 있을 뿐 원고가 수령인으로 되어 있지는 않은 사실 또한 인정된다.

(C) In addition to the circumstances that the Plaintiff did not submit objective and direct data, such as the purchase of agricultural materials and sales details of fruit trees, etc. to prove that the Plaintiff directly cultivated the farmland of this case, the fact of recognition under the above Paragraph (a) alone is insufficient to acknowledge that the Plaintiff was living in the location of the farmland of this case and directly cultivated them. In addition, the facts of recognition under the above Paragraph (a) are not sufficient to support that the Plaintiff, consistent with the Plaintiff’s assertion, submitted evidence Nos. 12-1, 13-1, 13-1, 20-1, 24-1, 25-1, 25-1, 33, 34-1, 27-2, and 35-1, 1, 33, 34-2, and 35-29, respectively, and there is no other evidence to acknowledge

(3) Therefore, the Plaintiff’s assertion is without merit, and the instant disposition is lawful.

3. Conclusion

그렇다면원고의이사건청구는이유없으므로기각한蠻}여주문과같이판결한다.