Cho High Court Decision 201Do3215 ( November 09, 2011)

In light of academic activities, etc., it is difficult to deem that the applicant meets the requirements for re-school and self-reliance

It is difficult to 11 years of age at the time of the acquisition of land from the elementary school to the time of university graduation, and the land appears to have been cultivated by families, and even if the resident registration was maintained at the site of land, it is difficult to deem that the land meets the requirements for re-village for at least eight years in light of academic activities

Article 69 of the Restriction of Special Taxation Act

2011Gudan30734 Revocation of Disposition of Imposing capital gains tax

Park XX

head of Sung Dong Tax Office

July 25, 2012

September 5, 2012

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 000 on June 7, 2011 to the Plaintiff (which appears to be a clerical error in June 27, 2011) is revoked.

1. Details of disposition;

On June 30, 1965, the Plaintiff acquired the land of this case by making registration of preservation of ownership of the 00-1 m2,655 m2 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2 (hereinafter “the land of this case”) in the Sju-gun-gun, Gyeonggi-do on June 30, 1965, on the ground that the instant land was directly cultivated for at least 0 years as prescribed by the former Restriction of Special Taxation Act (amended by Act No. 10361, Jun. 8, 2010; hereinafter the same shall apply), Article 66 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22356, Aug. 25, 2010; hereinafter the same shall apply).

Considering the instant land as land for non-business use, the Defendant denied the special deduction for long-term possession and the application for reduction and exemption pursuant to the instant special provisions, and notified the Plaintiff of KRW 000 on June 7, 201 of the transfer income tax belonging to the year 2010.

Therefore, the defendant, who filed an objection on June 27, 201, applied the long-term possession special deduction and general tax rate with regard to the land of this case as non-business land on June 27, 201, but denied the application of the special case of this case, thereby reducing capital gains tax to 00 won (hereinafter "the disposition of this case").

The Plaintiff filed an appeal against the instant disposition, and the Tax Tribunal dismissed the Plaintiff’s appeal on the ground that the period from June 30, 1965 to December 22, 1976, which was from June 30, 1965 when the Plaintiff acquired the instant land to Seoul (11 and 6 months) cannot be deemed to have directly cultivated the instant land due to the Plaintiff’s student status and military service, etc., from the age of 12 to 23 years.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 to 3 (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

“The Plaintiff was 12 years of age at the time of the acquisition of the instant land, but more than 8 years thereafter (the period of cultivation after deducting the period of military service from the period of 3 years and 9 years and 5 months) (the period of cultivation was 12 years and 5 months), and all family members, including the Plaintiff, were living in the location of the instant land at the time of the instant land and living together with the instant land through collaboration, and the instant disposition in light of the previous Supreme Court precedents which interpret that the instant land constitutes a case in which not only the Plaintiff directly cultivated the instant land but also a case in which the family members living or living together with the same household have cultivated the instant land, and that the instant land constitutes a case in which the Plaintiff had cultivated the instant land by self-defense or direct cultivation.”

(b) Relevant statutes: To be listed in attached Form;

C. Determination

(1) Article 69(1) of the former Restriction of Special Taxation Act provides that "the tax amount equivalent to 100/100 of the transfer income tax shall be reduced or exempted for the income accruing from the transfer of the land prescribed by the Presidential Decree among the land which is subject to the taxation of agricultural income tax, and Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329 of Feb. 9, 2006) provides that "the direct cultivation of a resident means that the resident engages in the cultivation of the crops or perennial plants in his own farmland or cultivating or cultivating them with his own labor for not less than a half of the cultivation of the crops or perennial plants, or that the farmer cultivates or cultivates them with his own labor for not less than a half of the cultivation of the crops or perennial plants in his own farmland." Article 2 subparagraph 5 of the Farmland Act provides that "a farmer is engaged in the cultivation of the crops or perennial plants in his own farmland or growing them with his own labor for not less than a half of the crops or growing them in his own plants."

As above, Article 69(1) of the former Enforcement Decree of the Restriction of Special Taxation Act delegates a specific scope to Presidential Decree by declaring the land directly cultivated for not less than eight years as the object of exemption from capital gains tax. Article 66(4) and Article 66(4) of the Enforcement Decree of the same Act provides for the subject of exclusion from the farmland cultivated by oneself for not less than eight years, and Article 2 subparag. 5 of the Farmland Act provides for the same content as the self-regulation provision under Article 2 subparag. 5 of the same Act. Thus, Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act does not include any provision on delegation or any provision on invalidation as it goes beyond the limit of delegated legislation (see, e.g., Supreme Court Decision 2010Du84

As such, Article 66 (13) of the former Enforcement Decree of the Restriction of Special Taxation Act, which cannot be seen as a provision for invalidation, clearly states that "a resident is engaged in the cultivation of crops or the growing of perennial plants on his own farmland or in the cultivation or the growing or growing with his own labor not less than 1/2 of the farming work." Thus, it is not permissible to interpret that a resident is included in cases where a resident makes a family member living or living together with his/her household cultivate with his/her own labor. The Supreme Court decision invoked by the Plaintiff (see, e.g., Supreme Court Decision 94Nu11859, Feb. 3, 1995) is related to the previous provision that prescribes the meaning of "direct farming" and it is difficult to apply to the interpretation of Article 66 (13) of the former Enforcement Decree of the Restriction of Special Taxation Act, which prescribes the meaning of "direct farming."

(2) We examine whether the Plaintiff was engaged in the cultivation of crops or the growing of perennial plants on the instant land, namely, whether the Plaintiff was engaged in the cultivation of crops or the growing of perennial plants at all times or with his own labor (in light of the form and system under Article 69(1) of the former Restriction of Special Taxation Act, in a case of imposing capital gains tax according to the general tax rate, the burden of proving the fact that the Plaintiff had resided in the location of farmland and transferred the transferred land for at least eight years is the person liable to pay capital gains tax in accordance with the above provision (see, e.g., Supreme Court Decision 2002Du7074, Nov. 22, 2002).

Comprehensively taking account of the overall purport of Gap evidence Nos. 2, 3, 4, and 6 (including each number), the plaintiff was 11 years of age as of June 30, 1965, when he acquired the land of this case as of July 25, 1953 on the family relations register, and the plaintiff was 11 years of age as of June 30, 1965, when he acquired the land of this case by birth on July 25, 1953, and the plaintiff was 10 years of age as of 10, 200, 200, the plaintiff's father's father BB owned the land of this case and cultivated the land of this case as of June 30, 1965, the plaintiff was 10 years of age as of June 30, 196, and 196, the plaintiff was 16 years of age or 100,000,000 members of the plaintiff's neighboring land of this case, and 10 or 6,0.

On the other hand, the following facts are also acknowledged in full view of Gap evidence 7-1 to 5, Eul evidence 4-2 and the purport of the whole pleadings.

The plaintiff entered the Korean National University around February 1959, on March 1962, 1962, when he was enrolled in the Korean National University located in Seoul Special Metropolitan City, which was the fourth grade of elementary school. The plaintiff, around February 3, 1965, entered the Korean National University in Seoul Special Y High School, around February 1969, after entering and graduating from the Korean National University, around March 1972, and on March 1976, on around 1974, on and around 1976. The plaintiff graduated from the Korean National University on February 2, 1979; the plaintiff was removed from the Japanese National University without permission from April 1, 1966; the plaintiff was removed from the Japanese National University on and around February 2, 1967; and the plaintiff was at least 10 meters in a middle school at the Japanese National University on and around February 1, 1967.

In full view of these facts, the Plaintiff’s age at the time of acquiring the instant land, i.e., the Plaintiff’s father or the Plaintiff’s punishment appears to have actually cultivated at Seoul at the time of acquiring the instant land from the fourth grade of elementary school to the university. The Plaintiff’s father or the Plaintiff’s punishment appears to have been actually cultivated, and in particular, considering the purport of Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act stipulating that the purpose of reduction and exemption of transfer income tax, etc. for self-employed farmland and the purpose of establishing “direct farming” in order to embody the meaning of “self-employed farming” by allowing a person directly engaged in agriculture to engage in long-term farming, the Plaintiff cannot be deemed to have “direct farming” of the instant land by satisfying the requirements of the Plaintiff’s direct input (including 1/2 or more of his own labor force) of farmers and farmland, and there is no other evidence to acknowledge that the Plaintiff maintained the Plaintiff’s resident registration for not less than 17 years, as seen earlier (including each number).

(3) Therefore, the Plaintiff’s assertion that the Plaintiff directly cultivated the instant land for at least eight years is without merit, and the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.