land shall not be deemed to have been lost, and it shall not be deemed to have been excluded from land for non-business use.

The Plaintiff cannot be deemed to have cultivated directly as long as the Plaintiff returned subsidies and did not do so, and it cannot be viewed as land excluded from non-business land.

Article 69 of the Restriction of Special Taxation Act

2017Gudan408 Disposition of Revocation of Capital Gains Tax Imposition

IsaA

BB Director of the Tax Office

September 6, 2017

September 20, 2017

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The Defendant’s disposition of imposition of KRW 00,000,000 on July 1, 2016 against the Plaintiff was revoked.

1. Details of the disposition;

A. On July 15, 1998, the Plaintiff acquired and owned 0,000 square meters as a gift from BB-dong BB-dong 624 square meters, and on November 19, 2003, the Plaintiff transferred 0,000 square meters of the above land, which is 0,000 square meters of the Plaintiff’s share (5/7) among the remaining areas of 0,000 square meters of the remaining area on January 6, 2014, after being divided into 624-4 of the same Act. On February 7, 2014, the Plaintiff filed an application for reduction of or exemption from capital gains tax on the ground that he/she around eight years or more while filing a transfer income tax with the Defendant.

B. From April 1, 2016 to the 20th of the same month, the Defendant conducted an investigation of capital gains tax on the Plaintiff, and denied the reduction or exemption of capital gains tax on the ground that the Plaintiff did not actually cultivate the instant land, and determined and notified the Plaintiff on July 1, 2016, by excluding special long-term possession deduction on the ground that the said land constitutes non-business land pursuant to the proviso to Article 168-14(3)1-2 of the former Enforcement Decree of the Income Tax Act as of the date of transfer, on the ground that it constitutes a non-business land as of the date of transfer. (hereinafter “instant disposition”).

C. On October 4, 2016, the Plaintiff filed an appeal with the Tax Tribunal on October 4, 2016, but on October 2016.

12.14. The dismissal was made.

[Reasons for Recognition] Each entry in Gap 1, 2, Eul 1, and 2 (including virtual numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff, after retired from office as a public official, was donated the instant land to a public official, and re-established the said land at the seat of the said land with the assistance of the 6th degree East CC, etc. holding agricultural machinery. However, the Defendant was erroneous in deeming that the Plaintiff was not self-feasible based on the false statement in the investigative agency of thisCC

2) Even if the Plaintiff did not directly establish a farming house according to the Defendant’s assertion, it is unreasonable that the Plaintiff excluded the instant land from the non-business land pursuant to Article 168-8(3)7 of the former Enforcement Decree of the Income Tax Act, even if it was excluded from the non-business land, the Defendant excluded the special deduction for long-term holding.

3) A primary tax investigation conducted around September 2015 and a secondary tax investigation conducted around April 2016 with respect to the transfer of the instant land. However, in the case of the secondary tax investigation that served as the basis for the instant disposition, it constitutes a duplicate tax investigation under Article 81-4 of the Framework Act on National Taxes.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) First, as to the first argument (whether to do so)

According to Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 13560 of Dec. 15, 2015) and Article 66(1) and (3) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26070 of Feb. 3, 2015), in order to obtain capital gains tax reduction or exemption, a person shall directly cultivate the relevant farmland while living in a Si/Gun/Gu where the relevant farmland is located for at least eight years, an area within a Si/Gun/Gu adjacent to the relevant farmland location, or an area within 20km from the relevant farmland. In such cases, “direct cultivation” means that a resident is constantly engaged in cultivating or cultivating crops or perennial plants with his/her own labor, or cultivating or cultivating 1/2 or more of farming works with his/her own labor (see, e.g., Supreme Court Decision 201Du13819, Dec. 27, 2012).

In light of the above legal principles, the following circumstances are acknowledged as follows: ① The Plaintiff appeared at an investigative agency for a criminal case due to unjust receipt of subsidies for rice, namely, ① deemed the actual cultivator of the instant land as having been in charge of the farming company to the 6th East CC at its original mother, and had the 17th Gao on the condition that he would receive rice 17 Gao in Doo; ② the Plaintiff voluntarily stated that the Plaintiff had no knowledge of the farming company as it did not appear, ② the Plaintiff received official questions from the BB Dong head, and had it returned KRW 13,903,270 from 208 to 2012; ③ the Plaintiff did not have any other evidence to acknowledge that the Plaintiff had received the above farmland from the 20-year government from the 200-year government agency to 30-year government subsidies for rice, and the Plaintiff had no other evidence to acknowledge that the Plaintiff had received the above farmland from the 20-year government subsidies for 13 years to 200-year government subsidies.

2) As to the second argument (whether land for non-business use is applicable)

According to Article 104-3(1) of the former Income Tax Act (amended by Act No. 1358, Dec. 15, 2015; hereinafter the same) and Article 168-6 subparag. 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26067, Feb. 3, 2015; hereinafter the same shall apply), where the ownership period of land is five years or more, (1) more than two years during the five years immediately preceding the transfer date, (2) more than one year during the three years immediately preceding the transfer date, (3) more than one year during the three years immediately preceding the transfer date, and (40/100 of the land ownership period, and (4) more than three years during the three years immediately preceding the transfer date, the land in this case constitutes farmland for which the Plaintiff does not reside in the location of the land for non-business purpose, and thus, falls under Article 16-14(b) of the former Enforcement Decree of the Income Tax Act and Article 1614(b) of the former Enforcement Decree of the Income Tax Act.

The plaintiff asserts that the land of this case is excluded from non-business land pursuant to the proviso of Article 104-3 (1) 1 (a) of the former Income Tax Act and Article 168-8 (3) 7 of the former Enforcement Decree of the Income Tax Act. However, in cases where the land of this case is leased pursuant to the Farmland Act because the owner of the farmland cannot do so for an old age, the plaintiff is in a village even after the occurrence of the cause for the farmland of this case. (1) The owner is in a village after the occurrence of the cause for the farmland of this case for not less than five consecutive years retroactively from the date of the occurrence of the cause. (2) The "high age" under Article 83-3 (2) of the Enforcement Rule of the Farmland Act means the age of not less than 65. In the case of the plaintiff, the acquisition date of the land of this case was 1937 years for the acquisition date of the land of this case and falling under the "age of not less than 65 years" of the above holding period.

3) On the third argument (whether double tax investigations are conducted)

Inasmuch as a tax official’s investigation is related to mere fact-finding or a simple inquiry ordinarily accompanying such fact-finding, in cases where it is anticipated that a taxpayer, etc. can easily respond to such investigation or that there is no significant impact on the taxpayer’s freedom of business operation, etc., in principle, it is difficult to regard it as an “tax investigation prohibited from re-audit” (see, e.g., Supreme Court Decision 2014Du8360, Mar. 16, 2017). However, the part asserted by the Plaintiff as the primary tax investigation is merely that a tax official visited the instant land site to verify whether he/she is self-defluence according to the details of the return on capital gains tax submitted by the Plaintiff, and provided a revised report on the erroneous portion of income tax calculation due to the incorporation into an urban planning zone, and thus, it cannot be deemed as a “tax investigation prohibited from re-audit” merely because

D. Sub-committee

Therefore, all the plaintiff's assertion cannot be accepted, and the disposition of this case is legitimate.

3. Conclusion

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