Transfer 2013-0195 ( December 24, 2013)

In this case, it is difficult to deem that the farmland of this case was self-deed for more than eight years.

The disposition to impose capital gains tax after excluding the Plaintiff’s application for reduction or exemption is justifiable because the Plaintiff was engaged directly in the cultivation, etc. of crops for not less than 8 years in the instant land or was unable to deem that not less than a half of the farming work was cultivated or cultivated with his own labor.

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

2014Guhap593 Revocation of Disposition of Imposing capital gains tax

AA

○ Head of tax office

July 1, 2014

August 14, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax for the year 2012 imposed on the Plaintiff on August 1, 2013 is revoked.

1. Details of the disposition;

A. On September 14, 1987, the network BB completed the registration of ownership transfer with respect to OOOOOOOOOOOOOOOOOOOOOOOOOOOO2 on February 1, 1992 (hereinafter referred to as "one piece of land"), and the registration of ownership transfer with respect to the same OOOOOOOOOOOOOOOOOOOOOOOOOO2 on February 1, 1992 (hereinafter referred to as "two parcels of land," including the above land.

B. On March 15, 2002, the network BB donated the instant land to the Plaintiff, ASEAN, and the Plaintiff completed the registration of ownership transfer based on donation on March 18, 2002. The network BB died around April 2005.

C. On April 14, 2012, the Plaintiff sold one land to CCC, OO, OO, and DD two land to OO, OO, and OO, respectively. On May 16, 2012, the Plaintiff completed the registration of ownership transfer to CCC and DD respectively.

D. On July 31, 2012, the Plaintiff filed a return on capital gains tax with the purport that no amount of capital gains tax is to be paid after full reduction or exemption, as the Plaintiff directly cultivated the instant land to the Defendant for at least eight years.

E. However, on August 1, 2013, the Defendant denied the reduction or exemption of capital gains tax on the ground that it is difficult for the Plaintiff to be deemed that the Plaintiff directly cultivated the instant land for not less than eight years, and, on the ground that it is difficult to deem that the Plaintiff’s net BB, which was the Plaintiff’s member, directly cultivated the instant land for not less than eight years, donated it to the Plaintiff, thereby excluding the special deduction for long-term holding, thereby correcting and notifying the transfer income tax amount of KRW O,OO, andO0 (including

F. On October 7, 2013, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service on October 7, 2013. As a result of the examination, the Commissioner of the National Tax Service, on December 24, 2013, acknowledged the special long-term holding deduction for the instant land on the ground that the deceased BB directly cultivated the instant land for at least eight years and deemed to have donated it to the Plaintiff. However, the part that the Plaintiff asserted that the Plaintiff directly cultivated the instant land for at least eight years was not accepted in the examination

G. On January 2, 2014, the Defendant: (a) reduced the amount of tax corresponding to the special long-term holding deduction for the instant land by the Plaintiff; and (b) corrected and notified the amount of capital gains tax for the year 2012 (including additional tax) (hereinafter “the disposition of the instant case”), which was reduced as above, among the amount of capital gains tax corrected and notified on August 1, 2013, the amount of tax for the capital gains tax that was corrected and notified.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 28, Eul evidence Nos. 1, 2 and 3 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful on the following grounds.

1) The instant land transferred by the Plaintiff is the answer that can grow rice only, and the total area is an area that can be sufficiently cultivated by the Plaintiff that can be operated in the professional area of the farming machine with O/OO square meter. The Plaintiff, as a self-employed farmer, has received subsidies for non-payment of agriculture, has been used in farming operations by purchasing pesticides, fertilizers, etc., or being supplied with duty-free petroleum only supplied to a self-employed farmer. From March 1999 to March 199, the Plaintiff was registered as a member of the OOOF (hereinafter referred to as the “OFF”). In addition, the Plaintiff shipped part of the harvested rice from 2003 to OBB and OF under the name of the deceased and the Plaintiff, and consumed the remaining rice as food, or sold it directly in the general market.

Therefore, the Plaintiff directly cultivated the instant land for not less than eight years.

2) However, based on the fact that the EE, a partner of the Plaintiff, was registered as a business under the name of the Plaintiff, and that the Plaintiff was not a non-regular worker or a regular worker for the purpose of living and marriage, etc., the Defendant rendered the instant disposition, recognizing that the Plaintiff did not directly cultivate the instant land for at least eight years.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 11614, Jan. 1, 2013; hereinafter “Act”) provides that “The tax amount equivalent to 100/100 of the capital gains tax shall be reduced on the income accruing from the transfer of land among land cultivated directly by a resident living in farmland for at least eight years in the manner prescribed by Presidential Decree.”

In addition, Article 66 (13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 24368, Feb. 15, 2013; hereinafter referred to as the "Enforcement Decree") provides that "Direct farming" means that a resident is engaged in cultivating crops or growing perennial plants on his/her own farmland or growing or growing them with his/her own labor at least half of farming work."

2) In light of the principle of no taxation without law, or the requirements for tax exemption or reduction, the interpretation of tax laws and regulations shall be interpreted as the text of the law, barring special circumstances, and it shall not be allowed to expand or analogically interpret without reasonable grounds.

In particular, in light of the purport of clearly stipulating "direct farming" in the above Enforcement Decree, in order to solve the problem such as the reduction or exemption of capital gains tax without actually engaging in farming, it is also consistent with the principle of tax equity to strictly interpret it as a clearly preferential provision among the requirements for reduction or exemption of capital gains tax under the above Act.

Therefore, the meaning of "direct cultivation" as a requirement for reduction or exemption of capital gains tax should be strictly seen depending on whether a resident is engaged in cultivating crops in his/her own farmland at all times or in cultivating or growing 1/2 or more of farming works with his/her own labor. Furthermore, the burden of proving the fact of directly cultivating the transferred land at the seat of farmland for at least eight years lies in a taxpayer who asserts reduction or exemption of capital gains tax under the above law (see, e.g., Supreme Court Decision 94Nu96, Oct. 21, 194).

3) We examine the instant case in accordance with such legal doctrine.

According to the statements and images of Gap evidence Nos. 4, 5, 7, 8, 10, 11, 12, and 15, the Plaintiff’s parent

BB and FF had resided in OOO in the vicinity of the instant land from 1968, and the Plaintiff received subsidies for rice income from 2005 to 2011; the Plaintiff purchased approximately 10 fertilizers, etc. in its name from 2005 to 2011; the Plaintiff was provided with duty-free petroleum from 2007 to 2011; the Plaintiff joined the OOOOO, OO, OOOO, andO andO as the purchase price on October 18, 2006.

However, such facts alone are difficult to deem that the Plaintiff had been engaged in the cultivation, etc. of crops directly from the instant land for not less than eight years, or carried in the cultivation or cultivation of 1/2 or more of the farming work with its own labor. The Plaintiff’s assertion as to the facts that the Plaintiff had cultivated the instant land for not less than eight years, and the witnessCC’s testimony was not believed in light of the following facts, but it is insufficient to recognize it solely on the basis of each statement of evidence Nos. 21 and 22.

Rather, in full view of Gap evidence Nos. 3, 9, 14, 17, 18, 20, 23, 24, Eul evidence Nos. 1, Eul evidence Nos. 4 through 9, and the overall purport of testimony and arguments of the witnessCC, the following facts can be acknowledged.

① On February 20, 2003, which acquired the ownership of the instant land on March 18, 2002, the Plaintiff registered the business under its own name as “OOO store” but closed on June 30, 2003. In addition, the Plaintiff registered the business under its own name as “OOOO” on March 9, 2003, but closed the business on June 30, 2004.

② In addition, the Plaintiff was a temporary or regular employee from 2002 to 2012.

③ In particular, from March 1, 2009 to February 28, 2013, the working hours of △△ Cooperatives (hereinafter referred to as △△ Nonghyup), which the Plaintiff had worked as a regular worker, are from 09:0 to 18:00 each day. △ Nonghyup is located in OO-O-O-O-O, and the distance from the land of this case reaches about 27.1km.

④ The instant land is an area of 00m2,00 square meters, and if it is converted into a flat unit, it reaches approximately 00 and 000 square meters. Nevertheless, the Plaintiff did not have a specialized agricultural machine used mainly for farming, such as Tracers and compcomers.

⑤ From June 15, 1978, the Plaintiff, as the resident registration certified copy, was residing in OOOOOO of PB or FF adjacent to the instant land, which was the Plaintiff’s parent’s domicile. On November 13, 2003, the Plaintiff transferred OOOO, OOOOOOO head (Odong, OO apartment) to OOO head (OO apartment).

④ After that, the Plaintiff re-transfered to OO on April 24, 2004, the Plaintiff moved into OO, OOdong OO, OO apartment (OO, OO apartment) on June 12, 2004. On March 3, 2005, the Plaintiff re-transfered to OOO-type O-type O-type O-type O-type O-type O-typeO-typeO-typeO-type on October 25, 2005. In addition, the Plaintiff moved into O-type O-type O-type O-type, O-dongO-typeO-typeO-type (O-dong, O-type apartment)-type as of October 25, 2005 and resided together with his family members until now.

7) On May 29, 2013, the CCC acquired one of the instant land, prepared and submitted a written statement to the Defendant on May 29, 2013. The content was that CCC, since 2006, OO-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type f-type her mother, and around that time, the Plaintiff or the Plaintiff’s mother was paid the level of O-level

④ The subsidies for rice income from the instant land received by the GGG as the father of the CCC in 2002 and 2003, and the network BBB received as the Plaintiff’s father in 2004. Meanwhile, the details of the sales prior to the OF in 2005 indicated that the LBB purchased agricultural chemicals from 2000 to 2004, and the details of the purchase are also indicated as the network BB to shipping rice from 2003 to 2005.

3. Conclusion

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