Cho High Court Decision 201Do3160 ( November 02, 2011)

It is difficult to recognize as being a serious one for not less than eight years.

In light of the details of entry and departure, etc., it is difficult to recognize that the transferred land has been self-sufficient for not less than eight years, and if a person has cultivated a family member living or living together with the same household, it is not included in the case of cultivation by his own labor, and thus the disposition denying

Article 69 of the Restriction of Special Taxation Act

2012Gudan3449 Revocation of Disposition of Imposing capital gains tax

KimA

The head of Yangcheon Tax Office

June 1, 2012

July 6, 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 capital gains tax of KRW 000 against the Plaintiff on January 10, 201 is revoked.

1. Details of the disposition;

A. On March 16, 1995, the Plaintiff acquired and owned an OO 000, 3705 square meters (hereinafter “the instant land”) in Gyeonggi-do, the head of Gyeonggi-gun, Gyeonggi-do, and the Plaintiff applied for reduction or exemption of capital gains tax pursuant to Article 69 of the Restriction of Special Taxation Act for not less than eight years after transferring the instant land on June 13, 2007 after filing a transfer income tax report on July 31, 2007.

B. As a result, the Defendant: (a) found that the Plaintiff did not directly cultivate the instant land; (b) deemed that the Plaintiff did not directly cultivate the instant land; (c) denied the tax amount reduced or exempted for self-owned farmland for at least eight years; and (d) deemed that it was a non-business land and excluded the special long-term holding deduction; and (e) applied the tax rate of 60% to impose capital gains tax of 000 won for the transfer income tax of 2007.

[Reasons for Recognition] The non-contentious facts, Gap evidence 1, 2, and 1 and 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

① Since the Plaintiff directly cultivated the instant land for at least eight years while living in the location of the instant land, he/she shall be entitled to reduction or exemption of capital gains tax under Article 69

② Even if the Plaintiff was not directly cultivated, “direct cultivation” under Article 69 of the Restriction of Special Taxation Act should be deemed to include not only the Plaintiff’s direct cultivation but also the case where the Plaintiff’s family members living or living together with the same household have cultivated the instant land. As such, the Plaintiff’s parents living or living together with the same household have led the Plaintiff to cultivate the instant land, so the reduction of capital gains tax under Article 69 of the Restriction of Special Taxation Act

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Relevant legal principles

Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 9276, Dec. 29, 2008; hereinafter the same shall apply) provides that the tax amount equivalent to 10/100 of the transfer income tax shall be reduced or exempted for the land prescribed by the Presidential Decree among those on which the residents living in the seat of the farmland have cultivated for not less than eight years, and Article 66(12) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 20620, Feb. 22, 2008; hereinafter the same shall apply) provides that "the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329, Feb. 9, 2006; hereinafter the same shall apply)" means that the residents are constantly engaged in cultivating crops or growing perennial plants, and that the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 2010, Feb. 9, 2006) provides that the former Enforcement Decree shall be applied to the farmland.

(2) Specific determination

① In light of the Plaintiff’s assertion, the Plaintiff’s assertion, as well as the overall purport of the Plaintiff’s evidence No. 3, and there is no evidence to prove that the Plaintiff was engaged in direct cultivation, namely, cultivation of agricultural crops, cultivation of perennial plants, or cultivation of perennial plants for at least eight years from the instant land, or cultivation or cultivation with his own labor of at least 1/2 of the farming work. The Plaintiff’s assertion is without merit.

Next, the plaintiff's argument that the plaintiff's argument is against the above relevant legal principles, and it is not reasonable (the plaintiff does not constitute a case where the plaintiff cultivates or cultivates one-half or more of his own labor when he cultivates or cultivates together with two or more family members, and even in such a case, the above provision of the Enforcement Decree seems unlawful. However, even if the above provision is interpreted as not "direct cultivation", it seems that the owner of the farmland is illegal. However, even in such a case, if the owner of the farmland is engaged in ordinary cultivation or cultivation, it constitutes "all-time engaged in farming or cultivating" under the former part of the above Enforcement Decree, i.e., the former part of the above Article, and that it constitutes direct cultivation under Article 69 (1) of the former Restriction of Special Taxation Act, and it is difficult to accept this part of the plaintiff's argument, and this case is not the case where the plaintiff has cultivated the land of this case for eight or more years with his family members).

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.