early 2009 Heavy0190 (2009.08)

Whether or not farmland has been cultivated directly;

In light of the circumstances that do not submit objective and direct data, such as insertion, improvement, and expansion necessary for the direct cultivation of the previous farmland and substitute farmland, the purchase details of agricultural equipment or farming materials, sales details of products, etc., or the use of credit cards, etc. accompanying long-term dwelling at the address of this case, it is difficult to view that the farmland was directly

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 imposing KRW 154,269,510 on the Plaintiff on December 4, 2008 shall be revoked.

1. Details of disposition;

A. A. Around June 26, 1987, the Plaintiff purchased the same 320 m20 m2, 466 m2, 321-2 m2, 321-4 m2, and 199 m2 (hereinafter collectively referred to as “previous farmland”), and the previous farmland was the acquisition of public land on December 13, 2007 (i.e., the acquisition of land for public use on December 6, 2007) and the ownership transfer registration was completed in the future of the Korea Land Corporation.

B. On December 4, 2007, the Plaintiff acquired the answer 2,196 m2,196 m2,360 m2,360 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2.

C. On March 31, 2008, the Plaintiff reported the acquisition of substitute farmland to the Defendant as non-taxation at the time of filing a preliminary return of capital gains tax on the previous farmland.

D. On December 4, 2008, the Defendant deemed that it does not meet the requirements for reduction and exemption of capital gains tax due to substitute land for farmland, and determined and notified the Plaintiff of KRW 154,269,510 for capital gains tax belonging to the year 2007 (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on January 14, 2009, but was dismissed on June 8, 2009.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 6, 16, 18, 20, Eul evidence No. 1 (including each number), the purport of the whole pleadings

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

A. The plaintiff principal

The Plaintiff, while acquiring and cultivating the previous farmland in around 1987 and growing landscape trees from around 1989, has liveded in the previous farmland for more than three years, and had resided in the previous farmland (including the concept of adjoining land; hereinafter the same shall apply) for more than three years, and acquired and cultivated the substitute farmland within one year from the date of transfer of the previous farmland. Thus, the income from the transfer of the previous land is subject to reduction of capital gains tax due to the substitute farmland in Article 70 of the Restriction of Special Taxation Act, notwithstanding that it is subject to reduction of capital gains tax due to substitute farmland in the former land in accordance with Article 70 of the

(b) Related statutes;

It is the same as the entry of the attached statutes.

C. Determination

1) According to Article 70(1) of the Restriction of Special Taxation Act (amended by Act No. 921 of Jan. 1, 2010) and Article 67(1), (2), and (3)1 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 20620 of Feb. 22, 2008), “Where a person who has resided in the previous location of farmland for not less than three years and cultivated the farmland while residing in a new location of farmland for not less than three years after acquiring another farmland within one year from the date of transfer of the previous farmland, and where the area of the newly acquired farmland is 1/2 of the area of the farmland to be transferred or more of the value of the transferred farmland is 1/3 or more of the value of the farmland to be transferred, the tax amount equivalent to 100/100 of the transfer income tax shall be reduced or exempted with respect to

2) The purport of the provision that reduces capital gains tax on the substitute land of farmland under the Restriction of Special Taxation Act is to protect a self-employed farmer and encourage agriculture by guaranteeing free substitution of farmland. Therefore, the subject of reduction or exemption shall be construed to limit the cases where the farmland acquired by the self-employed farmer and cultivated is to be substituted for the purpose of cultivation.

Therefore, the requirements for reduction or exemption of capital gains tax due to substitute land for farmland shall be the farmland. ② The former land and new land acquired shall be cultivated directly while residing in the previous land location for not less than three years and residing in the new land location for not less than three years in addition thereto. ③ The residence and cultivation shall begin within one year from the date of transfer of the previous land. ④ The period between the date of transfer of previous land and the date of acquisition of new land shall be within one year. ⑤ The area of newly acquired farmland shall be at least 1/2 of the area of farmland to be transferred or the value of transferred farmland shall be at least 1/3 of the value of

In addition, the term "direct cultivation of farmland" is that a resident is engaged in the cultivation of the crops or the growing of perennial plants in his own farmland at all times (in the location and location of the farmer and farmland, in the vicinity of time) or who is engaged in the farming work at least 1/2 of his own labor (in the direct labor force of the farmer).

In addition, in order for the Plaintiff to have the capital gains tax on income generated from substitute land for farmland reduced or exempted due to the necessity for cultivation, the Plaintiff’s assertion (see, e.g., Supreme Court Decision 92Nu11893, Jul. 13, 1993).

3) In this case, we examine whether the Plaintiff resided in the previous location of the farmland for not less than three years and directly cultivated the previous farmland (influence, etc. suitable for the cultivation of perennial plants) for more than three years, and in addition, it is proved that the Plaintiff resided in the new location of the farmland for more than three years and directly cultivated the substitute farmland (influence, etc. suitable for rice shed).

A) Facts consistent with or favorable to the Plaintiff’s assertion

The following facts may be acknowledged according to each of the testimonys stated in Gap evidence Nos. 8, 9, 10, 11, 12, 14, 15, 19, 21, 22, and 23 (including each number), and witness assistanceCC, ED, and KimE:

① 원고는, 1982. 3. 13. 경기 용인군 기흥면 FF리 273, 1988. 4. 8. 수원시 매탄동 896-2 주공아파트 517동 502호, 1989. 12. 8. 서울 노원구 GG동 737 주공아파트 305동 801호, 2001. 3. 27. 서울 노원구 GG동 1279 GG1차 LL하이츠아파트 102동 1505호, 2006. 7. 10. 용인시 HH구 KK동 216-1(이하 '이 사건 주소지'라 한다)로 각 전입신고를 마쳤다. ② 염PP, 조NN, 최MM과 KK3통 통장인 조CC는 원고에게 '원고가 2006. 7. 10. 이 사건 주소지로 전입한 이래 계속하여 거주하고 있다'는 취지의 확인서를 작성해 주었다. ③ 이DD은 원고에게 '이 사건 주소지 소재 주택(방1칸)을 2006. 7.경부터 원고에게 임대 및 전세 주었다'는 취지의 약정서 및 부동 산임대차계약서를 작성해 주고, 같은 취지로 이 법원에서 증언하였다. ④ 성QQ는 2009. 1.경 원고에게 '원고가 종전 농지를 직접 경작하였다'는 취지의 자경확인서를 작 성해 주었다. ⑤ 용인시 HH구청장이 2007. 12. 12. 발급한 농지원부등본에는 '원고가 종전 농지는 자경하고, 대체 농지는 휴경하고 있다'는 취지로 기재되어 있고, 2008. 8. 22. 발급한 농지원부등본에는 '원고가 대체 농지를 자경하고 있다'는 취지로 기재되어 있다. ⑥ 원고는 2007. 3. 28. 한국토지공사에게 종전 농지상에 있던 나무와 농자재 등을 보상액 27,500,000원에 양도하기로 협의하였다. ⑦ 원고는 2008. 10. 20. 이DD에게 10,000,000원을 지급하였다. ⑧ 원고는 2008. 10.경부터 용인시 일원에서 신용카드를 다수 사용하였다. ⑨ 원고는 2009. 7. 29. 대체 농지 소재지인 장호원농업협동조합에 조합원으로 가입하였다.

B) Facts that do not comply with the Plaintiff’s assertion or disadvantageous

On the other hand, the following facts are also acknowledged in full view of the statements in Gap evidence Nos. 8, 10, and 11 Eul evidence Nos. 2 and 6, and the overall purport of the arguments in some testimonys in witness assistanceCC, DoD, and KimE.

① On July 10, 206, the Plaintiff’s wife and her children resided in the Seoul Special Metropolitan City, and moved to the address of the instant case on July 10, 206. ② D 1 partitions owned by the Plaintiff does not have an independent kitchen which can be cooked with approximately three square meters. ③ The Plaintiff purchased one local tax base of 31Nu1600 on May 2007 (30: 39,014,00 won) at the same time, and it is reasonable for the public official to rent 1 square meters away from 300,000,000 won for the first rent of 10,000,000 won for the Plaintiff’s 20,000,000 won for the first rent of 10,000 won for the instant case.

(c) small decision;

In light of these facts, the Plaintiff’s assertion that the Plaintiff could not submit objective and direct data, such as the insertion, improvement, and expansion necessary for the direct cultivation of the previous farmland and substitute farmland, details of the purchase of basic farming equipment or farming materials, details of the sale of products, details of the use of credit cards, etc., which are accompanied by the long-term dwelling at the domicile of this case, or the details of the use of credit cards, etc., and the statement, etc. that the Plaintiff considered to meet the above requirements, etc. is insufficient to explain the specific facts while indicating only the conclusion. In addition, evidence No. 8, No. 9-1, No. 2, No. 3, and No. 12, No. 14-1, No. 14-2, and evidence No. 1, No. 14-2, and evidence No. 1, and evidence No. 14 of the Plaintiff’s previous farmland and substitute farmland can not be easily admitted as evidence to residence of the Plaintiff’s previous farmland and substitute farmland for three years or more (one-half or more).

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as there is no ground.