Cho High 201 Jeon 2177 (Law No. 279, 2011)

It is difficult to deem that a farmer has cultivated more than 1/2 of farming work with his own labor;

It is difficult to recognize that previous farmland has been cultivated directly in view of the fact that the previous farmland was transferred to the operation of restaurant, etc. without a permanent residence in the previous farmland, the fact that the farmland was not directly cultivated, the fact that the third party failed to submit objective data to deem that the farmland was cultivated, and the fact that the farmland was shipped to agricultural

Article 70 of the Restriction of Special Taxation Act

2011Guhap2175 Revocation of Disposition of Imposing capital gains tax

IsaA

Head of Dong District Office

March 8, 2012

April 12, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2009 against the Plaintiff on January 5, 201 is revoked.

1. Details of the disposition;

A. On December 9, 2003, the Plaintiff acquired and owned an OO 000-0 Y 2,306 m2,06 m2 (hereinafter “the previous farmland”). On September 28, 2009, on September 20, 2010, on the transfer of the previous farmland, the Plaintiff applied for reduction and exemption of capital gains tax pursuant to Article 70 of the Restriction of Special Taxation Act, which provides for reduction and exemption of capital gains tax on the farmland belonging to 2009 as a result of the transfer of the previous farmland in this case.

B. On September 14, 2010, the Plaintiff acquired 1,603 square meters (hereinafter “the substitute farmland in this case”) prior to 000 OOri-ri 00,000, North Korea-do, Chungcheongnam-do.

C. On January 5, 2011, the Defendant issued a correction and notification of KRW 000 to the Plaintiff on the ground that the Plaintiff did not directly cultivate the previous farmland and did not meet the requirements for reduction and exemption of capital gains tax (hereinafter “instant disposition”).

D. On June 10, 201, the Plaintiff appealed and filed a request for a trial with the Tax Tribunal on March 2, 201, but the Tax Tribunal dismissed the request on September 27, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1 to Gap evidence 3 (each number is included, hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff acquired and cultivated the previous farmland of this case for not less than 3 years and resided in the location of the previous farmland, and directly cultivated the farmland of this case (leapD permitted a farmer to use a vinyl house from November to March first, and the remaining period was directly cultivated by the Plaintiff). Since the Plaintiff acquired and cultivated the farmland of this case within 1 year from the date of transfer of the previous farmland, it constitutes an exemption from capital gains tax pursuant to Article 70 of the Restriction of Special Taxation Act. Accordingly, the Defendant’s disposition of this case made on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The plaintiff transferred the O00-0 of the document O00-0 of the Chungcheongnam-gun, Chungcheongnam-gun on May 1999, and on September 18, 2004, 00-0 of the O0-0, O00-0, O00-0, 2005, O00-0, 200-0, 18, 2008, O0-0, 200-0, 2000, 200-0, 300-0, 2000, 2000, 2000, 200, 200, 300-0, 200, 200, 300, 200, 200, 200, 200, 200, 300, 200, 200, 200, 200.

2) From June 1, 1999 to December 31, 2006, the Plaintiff directly operated a restaurant with the name of EEE in the name of 00-0 of the OE in Yeong-gun, Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-do. From January 2, 2006 to the time of the transfer of the previous real estate in this case, the Plaintiff was in charge of the branch office of the land office of the HHH welfare meeting for the disabled, a corporate entity located in the above address from around 2002.

3) After acquiring KRW 000, the Plaintiff sold the previous farmland in 000 won, and purchased KRW 000 as at the time one year elapsed from the date of sale. On the other hand, on December 9, 2003, the date of acquisition of the previous farmland in this case, the Plaintiff created a right to collateral security and superficies of KRW 000 with respect to the maximum debt amount of KRW 00,000 with respect to the previous farmland in this case, and on May 4, 2007, the Plaintiff again set up a right to collateral security of KRW 00 with respect to the maximum debt amount of KRW 00,000 with respect to the agricultural cooperative on May 15, 2007.

4) On the farmland ledger issued on January 3, 201 by the head of Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-gun, the Plaintiff owned farmland of 11,672 square meters in size in the area of O Ri, O Ri, O Ri, O Ri, O Ri, O Ri, O Ri, O Ri in the area other than the previous farmland in the case, during the period for which the Plaintiff asserted that he cultivated the previous farmland in this case, and that the Plaintiff was directly engaged in cultivating rice, manure, miscellaneous, etc. while holding farmland of 11,672 square meters in the area of O Ri, O Ri, Y Ri, Ya-gun, Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-gun, Seoul-gun, in addition to the previous farmland in this case.

5) Before the Plaintiff purchased the previous farmland of this case, Nonparty DoD entered into a lease agreement with the former owner before the Plaintiff entered into the previous farmland of this case, and cultivated pet houses, water stuffs, and water stuffs, etc. in the previous farmland of this case, and shipped the previous farmland of this case to the agricultural cooperative, and the Plaintiff continued to receive subsidies from the said vinyl house even after the purchase of the previous farmland of this case. However, on March 2004, Nonparty Do was found to have been damaged due to heavy snow, it was found that the vinyl house installed in the previous farmland of this case was cut down, and continuously built a vinyl house on the previous farmland of this case, and cultivated pet houses, etc. and shipped them. Moreover, DoD applied for environment-friendly agricultural subsidies to be granted to the actual farmer of the previous farmland of this case in 2006 and 2007, but it was clearly stated that it was later revoked, and thus, was not actually paid subsidies.

[Ground of recognition] Evidence No. 2-1, Evidence No. 4-1, 3, and 8, Evidence No. 14, Evidence No. 15, Evidence No. 2, Evidence No. 5, Evidence No. 6, and the purport of the whole pleadings

D. Determination

1) According to Article 70(1) of the Restriction of Special Taxation Act and Article 67(1) through (3) of the Enforcement Decree of the same Act, where a person, who resided in the previous farmland for not less than three years and cultivated directly, acquires other farmland within one year from the transfer date of the previous farmland, and resides in a new farmland for not less than three years, the tax amount equivalent to 10/100 of the transfer income tax shall be reduced or exempted. "Direct farming" means that a resident engages in cultivating crops or growing perennial plants on his own land at least 1/2 or more of the cultivation with his own labor. On the other hand, the direct farming of farmland meeting the requirements for reduction or exemption of the transfer income tax must be proved indirectly by the claimant. In addition, because of the need for farming as above, the purport that no transfer income tax is imposed on a certain piece of farmland to protect and promote agriculture by providing free substitution of farmland, and thus, it shall be the previous land and new land to be acquired, and it shall not be deemed that the transferor is another person who directly engaged in the transfer of the land at least 20. 95.

2) In the instant case, as shown in the Plaintiff’s assertion, it is difficult to believe that the testimony of the Plaintiff directly cultivated the previous farmland in light of the following: (a) evidence Nos. 4-1, 2, and 5-1 through 5-5; (b) evidence Nos. 16-1 through 3; (c) evidence Nos. 16-1, 16-3; and (d) evidence Nos. 4-2, 2-2, 2-2, 5; and 7 evidence Nos. 7; and (b) each statement of evidence Nos. 9 through 12, 17, 19, and 20 evidence No. 11 is insufficient to acknowledge the Plaintiff’s assertion; and (c) there is no other evidence to prove otherwise.

3) Rather, the following facts acknowledged as above and evidence, i.e., (i) the Plaintiff did not permanently reside in the previous farmland until it is transferred; (ii) was engaged in activities by leaving the branch of the site where HHH welfare association for disabled persons was postponed from the restaurant in Chungcheongnam-gun; (iii) the Plaintiff did not submit objective data that the Plaintiff directly cultivated the previous farmland, including the ownership of agricultural machinery necessary for direct cultivation of the previous farmland; (iv) the details of purchase of agricultural materials; and (v) the shipment of agricultural products cultivated; and (v) even if the Plaintiff purchased the previous farmland after purchasing it, it is difficult for the Plaintiff to view the previous farmland to have been continuously cultivated or acquired the farmland from the previous farmland to the 3-year farmland development association; and (v) it is difficult for the Plaintiff to view the previous farmland to have been transferred to the 2006 or 207 farmland to the 3-year farmland development association, which was located in the farmland of this case without being able to obtain eco-friendly subsidies from the actual cultivator; and (v) it appears to have been found that the Plaintiff had never acquired the previous farmland.

4) Therefore, since the Plaintiff is not deemed to have cultivated the previous farmland of this case directly for not less than three years, the instant disposition based on the same premise is lawful, and the Plaintiff’s assertion is not acceptable without having to further examine whether the farmland of this case satisfies the requirements for reduction and exemption.

3. Conclusion

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