Whether the Plaintiff directly cultivated the instant land for at least eight years

The plaintiff has worked as a professional bank during the period of possession of the land of this case, and it is not proven that the land of this case could have been cut down. Thus, the disposition of this case is legitimate.

Article 69(1) of the Restriction of Special Taxation Act

2017Gudan7409 Revocation of Disposition of Imposing capital gains tax

Red*

*The Director of the Tax Office

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 of KRW 126,68,301 for the year 2013 against the Plaintiff on April 1, 2016 exceeds KRW 9,446,132 (including additional taxes) shall be revoked.

1. Details of the disposition;

(1) The Plaintiff acquired three parcels of land located in AAA Si HH Jri at HH, but transferred the land to the Korea Land and Housing Corporation by consultation for public works, and reported the transfer income tax for the period of 2013 over two occasions.

* In the above report of capital gains tax, the Plaintiff applied the reduction and exemption of the tax amount to the above 00-7 forest land 3,190 square meters and the above 00-7 square meters prior to 953 square meters (hereinafter referred to as “the instant land by adding up the two parcels”) for eight years, while indicating that the said 000-5 square meters are subject to reduction and exemption rate of 20% for the above 28 square meters, the Plaintiff applied the full reduction and exemption of the tax amount including the above 00-5 28 square meters for the reduction and exemption column.

B. From October 14, 2013 to October 25, 2013, the Defendant: (a) conducted a tax investigation on whether he/she is self-employed; and (b) on November 15, 2013, the Plaintiff appears to have cultivated 3,771 square meters of the above 00-7 forest land as orchard; (c) however, on the ground that the remaining 400 square meters of land for public works, etc., for which he/she is not self-employed for eight years, should be subject to reduction or exemption of capital gains tax; (d) the Defendant adjusted the transfer income tax for the year 2013 and additionally notified the difference of KRW 9,446,132; and (e) the Plaintiff paid the said additional tax amount around that time.

* On March 28, 2013, the Plaintiff filed a transfer income tax report on the said mountain 00-7 forest 3,190 square meters on March 28, 201, and subsequently filed a transfer income tax report on the entire three parcels, including the said mountain 00-7 forest 3,190 square meters on April 8, 2013, but the Defendant filed a revised report on the transfer income tax on the said 00-7 forest 3,190 square meters.

(1) On April 1, 2016, the director of the regional tax office of the regional tax office of the BB shall conduct a regular audit on the defendant, confirm the fact that the plaintiff has ordinarily earned income as a bank member, and consider that the plaintiff is not a self-employed farmer to be not a self-employed farmer to be subject to the provision on reduction and exemption of capital gains tax on self-employed farmland, and then the defendant excluded the plaintiff from the reduction and exemption of capital gains tax for 8 years and then re-revision and corrected the capital gains tax for 2013 for all the above three parcels of land as follows, and additionally notified 17,22,169 won.

Applicant filed an objection against the instant disposition with the Director of the Regional Tax Office on June 16, 2016, but was dismissed on August 17, 2016. The Plaintiff filed an appeal with the Tax Tribunal on November 15, 2016, but was dismissed on February 9, 2017.

Facts without dispute over the basis of recognition, Gap evidence 1-1, 2, Gap evidence 2-1, 2-2, Gap evidence 3-1, 2-2, Gap evidence 6-1, 2, Eul evidence 7, Eul evidence 1, Eul evidence 2-1, 2, Eul evidence 3, 4, 5, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

(1) Article 69(1) of the Restriction of Special Taxation Act explicitly provides that “The scope of the land directly cultivated for at least eight years shall be prescribed by the Presidential Decree, while it is exempted from capital gains tax.” Article 66(13) of the Enforcement Decree of the same Act provides that “Direct cultivation refers to a resident engaged in cultivating crops or growing perennial plants on his/her own land, or cultivating or cultivating at least half of the crops with his/her own labor, or growing or growing them with his/her own labor.” Thus, the above provision of the Enforcement Decree of the same Act should be interpreted as a literature to determine whether the land constitutes a direct cultivation, and the fact that the transferred land has been cultivated directly under the above provision must be proved by the transferor who asserts it (see, e.g., Supreme Court Decision 2013Du16531, Dec. 12, 2013

B. The Plaintiff asserted that, even though he worked as a bank source, he had resided in the vicinity of the instant land for not less than eight years and cultivated the instant land directly with his own labor force of not less than one half of the farming work, it is unlawful to deny the self-sufficiency of not less than eight years for the instant land, and therefore, the part corresponding to the additional tax amount among the instant disposition should be revoked.

The plaintiff's assertion is without merit in terms of the following.

(8) The plaintiff asserts that he directly cultivated the land of this case with his own labor as an orchard, ① has resided near the land of this case for not less than 8 years, ② has long died before her 1929, and it was difficult for the plaintiff to cultivate orchard directly due to brain flasing, etc. (Evidence No. 8). ③ The plaintiff continued to purchase agricultural materials and farming machinery to be used for the agricultural industry such as fertilizers, etc. (3) the sales tax by 1 through 6 customers, and evidence No. 10 to 13) the plaintiff had no comprehensive ownership of the land of this case * The fact that the plaintiff was unable to participate in the development of the agricultural industry of this case * the comprehensive ownership of the land of this case * the fact that the plaintiff had been using the farmland of this case 10 to 201.

○ The Plaintiff had long been working as a bank source as seen in the following table (the instant survey document No. 5, the Plaintiff’s wage and salary income statement No. 7, the Plaintiff’s wage and salary statement No. 8, and the search for the four thousand square meters in total,863 square meters in the instant land, which is a total area of 4,863 square meters in the field of orchard, and directly cultivated 1/2 or more of the farming work with his/her own labor. As such, it is extremely unusual that the Plaintiff must prove the fact that he/she was self-employed.

Even based on the various arguments presented by the Plaintiff, it is difficult to use it as materials to recognize that the Plaintiff operated an orchard in the instant land, and further, it is insufficient to use it as the grounds for recognizing that the Plaintiff had cultivated more than half of the farming work directly with his own labor, and there is no other obvious evidence to acknowledge the Plaintiff’s assertion.

It is necessary for the plaintiff to have a lot of interest and effort due to the influence of soil, climate, blight and harmful insects in order to properly develop the orchard. If the plaintiff resided in the neighboring area of the farmland of this case for not less than eight years and cultivated not less than 1/2 of the farming work of this case directly with his own labor, it is inevitable for him to have a trace of his life for a long period of time and a peta in relation to his farming work, and the plaintiff must employ a man who is unable to perform the farming work of this case by himself or herself. In addition, in light of the fact that the plaintiff does not clearly mention the specific contents of the farming work and the situation and role of the persons who participated in the farming work as well as the situation of the persons who participated in the farming work, the soil, and the process of overcoming it, etc., the plaintiff's assertion that he directly cultivated not less than 1/2 of the farming work of this case with his own labor is not easy.

3. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.