National Tax Service Review and Transfer 2010-0142 (Law No. 28, 2010)

It is difficult to deem that at least 50% of the farming work has been directly engaged in;

In full view of the fact that most of the remainder of rice farming works necessary for rice farmers except water atmosphere and pesticide cycles were carried out by leaving a third party and were on duty in a workplace where regular work is required except for nights and holidays, it is difficult to see that the entire farming work has been carried out for at least 50% of the total farming work and it does not meet the self-sufficiency requirements.

2011Guhap1041 Revocation of Disposition of Imposing capital gains tax

XX

the director of the tax office of Western

September 29, 2011

November 3, 2011

1. The plaintiff's claim is dismissed.

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

The imposition of capital gains tax of KRW 78,960,410 on the Plaintiff on April 1, 2010 shall be revoked.

1. Details of the disposition;

A. On February 9, 1990, the Plaintiff acquired and transferred to another person on May 30, 2008, the 2002 Jeju Jeju Jeju Jeju Jeju District District Court Decision 000 m200 m2 (hereinafter referred to as “instant land”).

B. The Plaintiff, upon filing a preliminary return on the tax base of capital gains tax for the year 2008 following the transfer of the instant land on September 30, 2008, directly cultivated the instant land for at least eight years, and applied for reduction or exemption of capital gains tax pursuant to Article 69(1) of the old Restriction of Special Taxation Act (amended by Act No. 9276, Dec. 29, 2008; hereinafter the same).

C. On April 1, 2010, the Defendant deemed that the Plaintiff was not directly cultivated the instant land, and thus, rendered the instant disposition imposing capital gains tax of KRW 78,960,410 on the Plaintiff for the year 2008 following the transfer of the instant land.

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on May 6, 2010, but the Tax Tribunal dismissed the said appeal on June 28, 2010.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1 through 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

① “Direct farming” under Article 69(1) of the old Restriction of Special Taxation Act means farming under his/her own calculation and responsibility, and does not include 1/2 or more of the farming work with his/her own labor, and Article 66(12) of the Enforcement Decree of the old Restriction of Special Taxation Act (amended by Presidential Decree No. 19329 of Feb. 9, 2006 and amended by Presidential Decree No. 21196 of Dec. 31, 2008; hereinafter the same shall apply) directly cultivating the instant land with the ParkA for eight years or more, so the same provision does not apply to the instant land.

② Even if Article 66(12) of the Enforcement Decree of the former Enforcement Decree of the Restriction of Special Taxation Act applies to the instant land, the Plaintiff directly cultivated the instant land for at least eight (8) years by inserting one half or more of its own labor force by using pesticides cycle, water atmosphere, etc.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

(1) Determination as to the assertion

Article 69(1) of the former Restriction of Special Taxation Act provides that the tax amount equivalent to 100/100 of transfer income tax shall be reduced for the income accruing from the transfer of land prescribed by the Presidential Decree, among the land that is subject to the agricultural income tax, which is directly cultivated by a resident prescribed by the Presidential Decree residing in a location of such land for eight or more years. Article 66(12) of the former Enforcement Decree of the Restriction of Special Taxation Act provides that a resident shall be engaged in cultivating crops or growing perennial plants on his own land or cultivating or cultivating at least half of farming works with his own labor. Article 2 subparag. 5 of the Farmland Act provides that a farmer shall not be obliged to directly delegate the meaning of Article 29(1) of the former Enforcement Decree of the Restriction of Special Taxation Act to a farmer who is engaged in cultivating crops or growing perennial plants on his own land, or cultivating or cultivating at least half of farming works with his own labor, and that an agricultural corporation shall not be subject to the same restriction as the former Enforcement Decree of the Restriction of Special Taxation Act for more than 20 years to be delegated by the Presidential Decree.

Furthermore, Article 66 (12) of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329 of Feb. 9, 2006) provides that the amended provisions on capital gains tax and gift tax under the Enforcement Decree of the same Act shall apply from the portion transferred or donated after the enforcement date of the amended Restriction of Special Taxation Act (amended by Presidential Decree No. 7839 of Jan. 1, 2006) (amended by Presidential Decree No. 7839 of the Restriction of Special Taxation Act). The transfer date of the land in this case is May 30, 2008. Thus, the Plaintiff’s assertion on the premise that Article 66 (12) of the former Enforcement Decree of the Restriction of Special Taxation Act is not applicable to

(2) Judgment on the argument

(A) According to Article 69(1) of the old Restriction of Special Taxation Act and Article 66(1) and (12) of the Enforcement Decree of the same Act, in order to obtain a reduction or exemption of transfer income tax on self-arable farmland, a resident living in the location of the farmland must have been engaged in the cultivation, etc. of crops for not less than eight years from the farmland for the purpose of transfer, or has cultivated with his own labor not less than half of farming work. Furthermore, the fact of self-arable of farmland is proved to the claimant (see, e.g., Supreme Court Decisions 92Nu1893, Jul. 13, 1993; 94Nu996, Oct. 21, 1994).

(B) In full view of the statements in Gap evidence Nos. 5, 6, 9, 10, 21 (including the number of pages), Eul evidence Nos. 5, 8, and 13 (including the number of pages), and the entire purport of the arguments in the testimony of the witness YellowCC and Park Jong-A, the following facts may be acknowledged.

① From August 11, 1991 to November 13, 1993, the Plaintiff’s domicile on the resident registration is 000, O200, O200, Y200, Y200, Y200, H200, H200, Y200, Y200, Y200, Y200, Y24, 1995 from the following day to October 24, 1995, H apartment from the next day to April 30, 197, H apartment 00, 00, h apartment 00, 000, h apartment from the next day to the transfer date of the instant land.

② On October 21, 1992, the Plaintiff joined the △△△ P&D &tech Co., Ltd. (the trade name at the time of the Plaintiff’s entry was called “△△△”), but later changed into the current trade name,” and worked in the accounting department until October 31, 2007. The Plaintiff received approximately KRW 15 million per year in 193 while working in the △△△△△, while receiving the benefits, and received approximately KRW 56 million per year in 2006.

③ On March 5, 199, the farmland ledger against the Plaintiff was first prepared on March 5, 199. Under the said farmland ledger, the Plaintiff, as the owner of the instant land, stated that the Plaintiff is a rice farmer with a total of 11,742 square meters of farmland including the instant land.

④ The Plaintiff received 197,200 won in direct payment from Kimpo-si in 2001, 394,400 won in 2002, 419,640 won in 203, 419,640 won in 2004, 1,125,240 won in 206, 875,950 won in 2007, and 932,660 won in 208, respectively.

⑤ While the Plaintiff owned the instant land while working in △△△ as above, the Plaintiff left rice farmers in the instant land by using the aforementioned work hours before and after work hours or holidays. Barred rice farmers were carried out in the order of rice ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? .., the water and pesticide cycles need to be hand-on, but the remaining works may be carried out, such as double-gras, twits, and compacts. The Plaintiff directly carried out water and pesticide cycles, but all remaining works, which can be carried out as machinery, paid money to Ga residing

(C) As above, the Plaintiff carried out work by leaving most of the remainder except water atmosphere and pesticide cycle to YA during rice farming operations necessary for rice farming companies. The above facts are as follows: ① Water atmosphere is well equipped with the facility, and water automatically enters into the farm site (the testimony of YA); ② Ehhym, track, and compact bar require special skills (the testimony of YA); ③ LA is a professional farmer cultivated in the vicinity of the instant land, but the Plaintiff was going to work for which regular work is required except for night and holiday holidays; ④ GD resided in the vicinity of the instant land from 1993 to 2008; ② it appears that the Plaintiff did not directly receive the above land from 16th of the Enforcement Decree of the Restriction of Special Taxation Act; ② it appears that the Plaintiff did not directly cultivate the above land, and the Plaintiff did not appear to have any reason to have been 16th of the total 16th of the Plaintiff’s farmland (the 16th of the Enforcement Decree of the Restriction of Special Taxation Act).

3. Conclusion

Therefore, the plaintiff's claim is without merit, and it is dismissed. It is so decided as per Disposition.