early 2010 Heavy2073 ( October 29, 2010)

It has been recognized as being self-deed for more than three years.

Comprehensively taking account of the fact that the Plaintiff was confirmed as a de facto cultivator of farmland in examining whether rice income direct payments were actually cultivated, the Plaintiff constitutes an exemption from capital gains tax, since it is recognized that the Plaintiff would have used at least 12 agricultural works in farmland for at least three years.

2011Guhap1079 Revocation of Disposition of Imposing capital gains tax

United StatesA

○ Head of tax office

April 28, 2011

May 26, 201

1. The Defendant’s imposition of capital gains tax of KRW 104,619,890 against the Plaintiff on October 1, 2009 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The disposition is as shown in the Disposition (However, it is clear that the plaintiff's date of disposition was written on October 19, 2009 in the complaint is a clerical error, so it must be corrected as shown in the Disposition).

1. Details of the disposition;

A. On August 16, 2004, the Plaintiff purchased ○○○○○○, 000 Dog-ri, 5,230 square meters (hereinafter referred to as “farmland prior to the division”). On November 14, 2008, the Plaintiff was divided from the above land into ○○○-ri, 000 Dog-ri, 00 Dog-ri (hereinafter referred to as “the farmland in this case”) and the registration of ownership transfer was completed on December 18, 2008 due to the consultation acquisition of public land.

B. Since then, on March 30, 2009, the Plaintiff acquired 3,013 square meters in response to 000 square meters in ○○-si, ○○○-si, ○○○○-si, 000 (hereinafter “alternative farmland”) within one year from the date of the above transfer.

C. On February 17, 2009, the Plaintiff reported the acquisition of substitute farmland to the Defendant as non-taxation at the time of filing a final return of capital gains tax on the farmland of this case.

D. On October 1, 2009, the Defendant decided and notified KRW 104,619,890 of the transfer income tax for the year 2008 by applying the heavy tax rate of 60% to the Plaintiff on the ground that the Plaintiff could not be recognized that the Plaintiff was self-employed in the farmland of this case, and that the farmland of this case constitutes non-business land (hereinafter “instant disposition”).

E. On December 29, 2009, the Plaintiff appealed against the instant disposition, but was dismissed. In other words, the Plaintiff filed a request with the Tax Tribunal for a review on June 15, 2010, but was dismissed on October 29, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1-1 through 3, Gap evidence 2, 3, Eul evidence 1, Eul evidence 3-1, Eul evidence 3-2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

1) The plaintiff's assertion

The Plaintiff, from August 2004 to December 2, 2008, resided in the farmland of this case for not less than three years, including the Plaintiff, at his own discretion, using a hull farmer’s house before and after leaving his place of work and a holiday, etc., and acquired and cultivated substitute farmland within one year from the date of transfer of the farmland of this case. As such, the income from the transfer of the farmland of this case is subject to the reduction of capital gains tax due to the substitute farmland of this case under Article 70 of the Restriction of Special Taxation Act, notwithstanding the reduction of capital gains tax due to the substitute farmland of this case, the disposition of this case on different premise should be revoked illegally.

2) The defendant's assertion

At the time of the on-site verification by the public official of the defendant, the largest AB, the head of the location of the farmland of this case, stated that "the plaintiff and his spouse shall cultivate nearby residents' commodities". Since the plaintiff's domicile and place of work are at the distance from 40 to 60 minutes from the farmland of this case, it is not reasonable that the plaintiff cultivated them by using hours before and after their commuting to their work, it is not reasonable that the plaintiff had cultivated them by using hours before and after their commuting to work. This plaintiff and his spouse, as the plaintiff and his spouse, hold farmland equivalent to 12,571 square meters in total, including the farmland of this case, and since the farmland of this case were scattered in a considerable and many places, it is difficult to view that the plaintiff living in the workplace was cultivated by all the above farmland of this case, it is not recognized that the plaintiff had cultivated by his own labor.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) 원고는 이 사건 농지를 취득할 무렵인 2004. 8. 18.경 ◇◇시 ◇◇읍 ◇◇리 000로 전입신고를 마치고 거주하다가, 2005. 3. 11.경 ◇◇시 ◇◇구 ◇◇동 000서 ◇◇아파트 000동 000호로 전입하였고, 그 뒤 2006. 9. 1. ♧♧시 ♧♧구 ♧♧로2가 000 ♧♧아파트 000동 000호로 전입하였다가 2007. 3. 6. ◇◇시 ◇◇구 ▽▽동 000 ▽▽빌 000동 000호로 전입하였는데, 이 사건 농지로부터 원고의 위 각 주소지까지는 약 37.5km - 50.7km 상당 거리로서 자동차로 40분 ~ 60분 정도 소요된다.

2) From 192 to 192, the Plaintiff was a local public official working in △△△ City, and was from his place of work to his place of work at his place of work, using a private string car, and had basic farming equipment, such as insertion, improvement, galivation, and galivation, necessary to cultivate farmland in the animal partitions of the said vehicle and manage the straw.

3) In the farmland ledger prepared by △△△△ City, the Plaintiff stated that the Plaintiff is growing rice in the instant farmland. When examining the actual cultivation of rice income direct payments around December 2008, the Plaintiff obtained confirmation that the Plaintiff actually cultivated rice in the instant farmland from the head of ○○○-si, ○○○, and the Plaintiff received the farming compensation amount as the farmer of the instant farmland in the compensation procedure that was incorporated into the public works project, as the instant farmland was incorporated into the public works project.

4) 원고는 ♤♤농업협동조합의 조합원으로 등록되어 있고, 위 조합의 ♤♤지점장은 원고가 2007년부터 2009년까지 사이에 매년 벼농사에 필요한 농약 등 영농자재를 구입하였다고 확인해 주고 있으며, 경기농산미곡종합처리장은 2008. 10.경 원고가 수확한 쌀 2,225.9kg을 수매한 사실이 있다.

5) During the period from 2005 to 2008, the Plaintiff, the resident of the village where the farmland in this case was located, called "PCC, DoD, LA, LA, EE, the Plaintiff: (a) prepared a confirmation document stating that the Plaintiff used the machinery in the farmland in this case, excluding the frying, frying, cutting off, cutting off, cutting off, cutting off, cutting off, and cutting down, etc.; (b) during the period of 2005 to 2008, ○○○○○ ○○○○○○○○○ was a public official of the Defendant and his spouse, the Plaintiff, and B, the spouse of the Plaintiff, “the Plaintiff,” was the owner of the farmland in this case, and the Plaintiff lent the agricultural machinery in this case, but it was confirmed that “the Plaintiff lent the agricultural machinery in neighboring residents who owned the agricultural machinery in need of the farming machinery in the city.”

6) A rice farmer was taking place in the farmland before the instant partition. However, according to the Statistics Korea’s survey result of rice production costs in 2009, the time required to produce rice 1,600 km, including the labor force using the machinery, the time required to produce rice 1,60 km per year was investigated as requiring 2,844 minutes (47.4 hours) from the area of 5,230 m2,00 m2, which is the data of the Statistics Korea. According to the Agricultural Technology Center’s letter of consultation with the Agricultural Technology Center in 00 m200 m20 m20 m200 m20 m20 m20 m20 m2,000 per year, it was found that there was a 10-hour m20 m2,000 m2,000 m2

7) AB owns farmland of 440 square meters and 2,508 square meters prior to 000 square meters prior to the Dog-ri, Dog-ri, Dogwon-gun, Seowon-gun, Seowon-gun, and Dong-ri. However, the above 00 land and its neighboring land, for which permission for development is granted to construct a building by jointly purchasing between two and seven persons, are under construction work, and are not subject to permission for development, are relatively less labor force than growing land.

[Ground of recognition] Facts without dispute, Gap evidence 4 and 7 evidence 1 to 4, Gap evidence 8 to 11, each of the statements or images, and the purport of the whole pleadings

D. Determination

(i) Requirements for reduction or exemption of capital gains tax due to substitute land for self-arable farmland

According to Article 70(1) of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter the same) and Article 67(1), (2), and (3)1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21196, Dec. 31, 2008; hereinafter the same), where a person who resided in the former location of farmland for not less than three years and cultivated the same while residing in the new location of farmland for not less than three years after acquiring another farmland within one year from the date of transfer, "where the area of new acquired farmland is not less than half of the area of transferred farmland or a third of the value of transferred farmland is not less than a third of the value of the farmland, the amount of tax equivalent to 100/100 of the transfer income tax shall be reduced or exempted, and "direct cultivation" means that a resident engages in cultivating agricultural products or growing plants for not less than two-one percent of his own labor force.

2) Whether or not the Plaintiff has reeded from the farmland of this case for not less than three years

In light of the following circumstances revealed by the facts as seen earlier, namely, ① the distance between the farmland of this case and the Plaintiff’s domicile and the Plaintiff’s workplace, and the size of the farmland of this case and the time statistics and values of labor force needed for rice farming, etc., it cannot be deemed that it is entirely impossible to secure farming time to invest more than 1/2 of the labor force necessary for cultivating the farmland of this case. ② Unlike the Defendant’s understanding, the Plaintiff and BB did not seem to have cultivated the farmland of this case by lending the labor force of neighboring residents, and it appears that the Plaintiff had been recorded as the farmer of the farmland of this case in the farmland ledger, etc. ③ When examining the actual cultivation of rice income direct farming, etc., the Plaintiff was registered as the actual cultivator of the farmland of this case, and the Plaintiff was confirmed as the actual cultivator of the farmland of this case, ④ the neighboring residents verified the fact that the Plaintiff had cultivated the farmland of this case from 10 years to 20 years to 30 years to 20 years to 1, etc., the Plaintiff and the Plaintiff purchased the said farmland of this case’s labor.

Therefore, the instant farmland, which the Plaintiff deemed to have cultivated directly for not less than three years, falls under the reduction of capital gains tax under Article 70 of the former Restriction of Special Taxation Act, and thus, the instant disposition based on the premise that it does not constitute such reduction or exemption is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.