Cho Jae-2015 Middle-3584 ( October 08, 2015)

It is not possible to prove the re-development of the land of this case and the 8-year reduction or exemption.

In addition, there is a lack of evidence as to whether the farming period corresponds to the farming period, whether the plaintiff himself/herself has cultivated, and whether the farming period exceeds eight years.

Article 69 of the Restriction of Special Taxation Act (Abatement or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

2016-Gu -43 Revocation of disposition rejecting capital gains tax rectification

AA

o Head of the tax office

oly 2, 2016

oly 2016.13

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Defendant’s Office of Correction of OOO for the Transfer Income Tax of April 16, 2015 for the Plaintiff on April 2015

The rejection disposition of the Gu shall be revoked.

1. Details of the disposition;

A. On November 11, 1986, the Plaintiff acquired and owned an OO-O-O, 717 square meters (hereinafter “instant land”) prior to the OO-O-O(hereinafter “the instant land”) and transferred the said land to Nonparty BB on March 20, 2014, and paid capital gains tax on May 13, 2014.

B. On March 25, 2015, the Plaintiff filed a request for correction to refund capital gains tax already paid on the ground that the instant land falls under the reduction or exemption of capital gains tax as farmland for at least eight years under Article 69 of the Restriction of Special Taxation Act. However, the Defendant rejected a request for correction on April 16, 2015 on the ground that the instant land is being used as cemetery as of the date of transfer and the Plaintiff was unable to prove that the said land was cultivated directly by the Plaintiff (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on July 10, 2015, but on July 2005.

10.8. The dismissal was made.

[Ground of recognition] No dispute, Gap evidence Nos. 7, 8, 9, Eul evidence Nos. 1 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, as his full-time family head and OFF members of Goyang-si, the Plaintiff resided in the OO in Goyang-si from around November 1982, 1982, and helps his spouse to engage in farming activities. On November 1, 1986, the Plaintiff acquired the instant land and directly cultivated such organic farming field as spawn, spawn, spawn, spawn, spawn, and stoma, and consumed the Plaintiff’s family members, including his children. The Plaintiff re-establisheded for at least eight years during the instant period of possession of the instant land. The Plaintiff resided in the OOO-si, under circumstances, for an OO-si, and led spawnly passed through the spawn market using a passenger car. In light of such circumstances, the instant disposition by the Defendant was unlawful, even if the Plaintiff re-established the instant land near the instant land and met the requirements for reduction or exemption.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) Relevant legal principles

Article 69 of the former Restriction of Special Taxation Act (Amended by Act No. 13560, Dec. 15, 2015)

Paragraph (1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26070, Feb. 3, 2015) and Article 66 (1) and (13) of the former Enforcement Decree of the Restriction of Special Taxation (amended by Presidential Decree No. 26070, Feb. 3, 2015) are required to directly cultivate the relevant farmland while residing in a Si/Gun/Gu where the relevant farmland is located, in a Si/Gun/Gu adjacent to the relevant farmland, or in an area within 20km of a straight line from the relevant farmland (hereinafter referred to as "requirements for direct cultivation for convenience"). In such cases, "direct cultivation" means that a resident is engaged in cultivating crops or growing perennial plants on his/her own farmland at all times, or cultivates or cultivates them with his/her own labor at least half of farming work.

Here, the meaning of “1/2 or more self-working force” ought to be interpreted on the basis of literature (see, e.g., Supreme Court Decision 2012Du19700, Dec. 27, 2012). The burden of proving the fact of directly cultivating the transferred land as a requirement for reduction or exemption of capital gains tax on self-Cultivating land is against a taxpayer who asserts reduction or exemption of capital gains tax (see, e.g., Supreme Court Decision 94Nu996, Oct. 21, 194).

2) Whether the self-farmland has been reduced or exempted

According to the purport of Gap evidence Nos. 2 through 6 and Gap evidence Nos. 9 and the whole pleadings, the plaintiff registered the address of about 8 years and 4 months (excluding approximately 2 months residing in OO-gu O-dong) from November 1, 1986 to June 1995 in the location of the land of this case or in the area within Si/Gun/Gu adjacent thereto under the resident registration card, and the part of the land of this case at the time of transfer, but there were two graveyardss, the area was considerably small compared to the total area of the land, and the plaintiff purchased the goods equivalent to the total amount of OOOs from O-A cooperative from May 2009 to July 2013.

However, in full view of the following facts and circumstances acknowledged by the purport of Eul’s entries in Eul evidence No. 2 and the entire pleadings in light of the aforementioned legal principles, it is difficult to deem that the Plaintiff satisfied all the requirements for re- village and self-defense to be exempted from capital gains tax, and there is no other evidence to acknowledge otherwise.

○ In order to be eligible for exemption from capital gains tax, the Plaintiff’s land

In other words, the requirements for self-sufficiency need to be met at the same time for more than eight years and the fact that the farmland in this case is to be resided in the Si/Gun/Gu where the farmland in this case is located for more than eight years from the time of acquisition to the time of transfer, and that it has been cultivated directly for more than eight years while residing in the area within the Si/Gun/Gu where the farmland in this case is located. As such, the requirements for re-village for about eight and four years in the case of the plaintiff are met, but there is no evidence to prove that the land in this case

○ From March 5, 2008 to the time of the transfer of the instant land, the Plaintiff resided in the OO of the GO of the GO of the GO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the KO of the K of the KO

○ Even if the Plaintiff actually cultivated past a considerable period of time in part of the instant land, there is lack of evidence as to whether the period of cultivation corresponds to the period of re-development, whether the Plaintiff himself/herself cultivated, and whether the period of cultivation is not less than eight years, and even if it is proved that he/she cultivated crops directly for not less than eight years during the period in which the requirements for re-development are not met, the requirements for re-development for the reduction of capital gains tax under the relevant provisions of the Restriction of Special Taxation Act are essential to obtain the exemption of capital gains tax under the aforementioned Decree. Thus, such circumstance alone alone cannot be deemed to constitute a reduction of capital gains tax.

3) Therefore, the Plaintiff’s assertion cannot be accepted, and in the same purport, the Plaintiff’s request for correction is filed.

The disposition of this case is legitimate.

3. Conclusion

The plaintiff's claim is dismissed. It is so decided as per Disposition.