Early High Court Decision 2009Du1756 (Law No. 96.30)

Direct payments made by preserving rice income may not be considered as a direct cultivation requirement.

In order to recognize ‘direct farming', unlike agriculture and agricultural management, the location and time of farmers and farmland, the distance of time, or the direct labor force of farmers are needed. Therefore, even if direct payments for preserving rice income, etc. have been made, ‘direct farming' cannot be presumed.

The contents of the decision shall be the same as attached.

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 141,328,90 for the Plaintiff on January 6, 2009 shall be revoked.

1. Details of disposition;

A. On January 16, 1996, the Plaintiff, AdCC, and KimD (hereinafter referred to as “Plaintiff, etc.”) jointly purchased 1/3 shares (hereinafter collectively referred to as “the farmland of this case”) from sulfurB, each of which 1/3 shares (hereinafter referred to as “the farmland of this case”) was transferred to the KimF on September 28, 2007.

B. On October 12, 2007, the Plaintiff reported the transfer income tax to the Defendant on October 12, 2007 on the condition that the instant farmland was self-sufficient for at least eight years and the transfer income tax was reduced or exempted.

C. On January 6, 2009, the Defendant issued a correction and notification of KRW 141,328,900 to the Plaintiff for the transfer income tax reverted to the year 2007 (hereinafter “instant disposition”) on the grounds that the Plaintiff cannot be deemed to have neglected the farmland of this case.

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on March 27, 2009, but was dismissed on June 30, 2009.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4, 15, 16, Eul evidence Nos. 1 and 2 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the farmland of this case was directly cultivated for at least eight years or for at least 2004 years from the date of acquisition of the farmland of this case, the disposition of this case which did not reduce capital gains tax at all without recognizing the Plaintiff’s direct cultivation is unlawful, since the farmland of this case was deemed as non-business land.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) According to Article 104-3(1)1 of the Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007), Articles 168-6 subparag. 1 and 168-8(2) of the Enforcement Decree of the same Act, and Article 2 subparag. 5 of the Farmland Act, farmland owner is a farmland owner who does not reside in the location of the farmland for a given period or does not own own cultivation, and is subject to capital gains tax by applying the tax rate of 60/100 of the tax base for non-business land.

In addition, Article 69 (1) of the Restriction of Special Taxation Act (amended by Act No. 9276 of Dec. 29, 2008) and Article 66 (1) and (12) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21307 of Feb. 4, 2009) provide that in order for a transferor to be eligible for reduction of or exemption from capital gains tax, he/she shall be recognized as having cultivated directly for not less than eight years from the time he/she acquired the relevant land while residing in a Si/Gun/Gu where the farmland is located or in a Si/Gun/Gu adjacent thereto, or within a Si/Gun/Gu where the farmland is located, and "direct cultivation" means that the transferor is constantly engaged in cultivating crops or growing perennial plants on his/her own farmland or cultivating or growing them with his/her own labor for not less than half of farming work.

2) Comprehensively taking account of the aforementioned provisions, “self-Cultivating” and “direct farming” are the same concepts to realize the legislative purpose in order to protect or encourage farmland owners’ leading farming. Since the Act on the Compensation of Rice Income, Etc. is for the main purpose of protecting rice and stabilizing income of farmers, etc., the Act does not require “direct farming” as the requirements for direct payments for preserving rice income, etc.

3) In order to recognize the above 'direct cultivation', unlike agriculture and agricultural management, the location of farmers and farmland needs to be located in the vicinity of time (on a regular basis) or one-half or more direct labor force of farmers (on a regular basis). Therefore, even if direct payments for preserving rice income, etc. are paid differently from the legislative purpose and requirements, 'direct cultivation' cannot be presumed.

4) In this case, we examine whether the Plaintiff is engaged in the cultivation of “direct cultivation” in the farmland of this case, that is, the cultivation of crops or the growing of perennial plants at all times, or cultivated or cultivated with his own labor not less than half of the farming work.

The following facts may be acknowledged according to the results of inquiries about Gap's 5, 7, 8, 9, 10, 11, 12, and 18 (including various numbers), the witness yellowB's testimony, and the Pyeongtaek-si's Myeon and Soon-Eup's Residents' Self-Governing Center of this Court, respectively.

① 원고는 1995. 12. 20. 이 사건 농지 인근인 평택시 현덕면 EE리 165로 전입신고를 마친 후 현재까지 평택시 관내에 주민등록이 되어 있다. ② 평택시 현덕면장이 작성한 농지원부에 의하면 원고가 2004년경부터 2007년경까지 이 사건 농지를 자경한 것으로 기재되어 있다. ③ 원고는 2005년경부터 쌀소득 등 보전 직접지불금 지급대상자로 등록되어 직불금을 수령해 왔다. ④ 이 사건 농지 소재지의 관할 이장인 이도상과 농지위원인 이TT, 이 사건 농지의 전 소유자 황BB는 원고에게 '원고가 1996년부터 2007년 양도시까지 이 사건 농지를 직접 경작하였다'는 내용의 인우보증서를 작성해 주었다. ⑤ 황BB는 원고 등에게 1996년부터 2007년까지 트랙터, 콤바인 등 농기계를 대여하였다는 내용의 농기계사용확인서를 작성해 주었다.® 신형주, 서상원 등은 1996년부터 2007년까지 원고에게 후라단(토양살충제), 논키퍼(잡초방제) 등 영농자재를 판매했다는 취지의 간이영수증을 발급해 주었다. ⑥ 이도상은 마을 영농회에서 비료와 농약 등을 공동구입하여 원고에게 배분하여 주었다는 취지의 마을영농회 공동구매 배분내역서를 작성해 주었다.

On the other hand, however, the following facts are also acknowledged in light of Gap evidence Nos. 5, 6, Eul evidence Nos. 3 and 6 (including each number), and the purport of the whole arguments in witness Nos. 3 and 6.

① From June 29, 1987, the Plaintiff had worked for only Do Co., Ltd. until July 2008. ② Wage and salary income received from the above Co., Ltd. were KRW 72,619,059, KRW 74,365,488, KRW 79,429, KRW 85,819,027, KRW 154,962, and KRW 962, which was recorded on the 19th anniversary of 2006, the Plaintiff’s 196-2, 206, 300, 194, and 1962, which was recorded on the 4th anniversary of 196-2, 206, 300, 194, 195, 195, 40, 195, 195, 205, 300, 194, 15, 2014, 204, 15,

In addition to the circumstances where the plaintiff himself/herself fails to submit objective and direct data, such as the insertion, improvement, and troke which are necessary for his/her direct cultivation of the farmland in this case, the witness yellowB testimony cannot be easily employed as evidence for direct cultivation of the plaintiff, and the above recognition alone is insufficient to recognize that the plaintiff directly cultivated the farmland in this case, and there is no other evidence to acknowledge that the plaintiff directly cultivated the farmland in this case. Furthermore, the plaintiff's direct cultivation cannot be recognized in full view of the above facts and circumstances. Accordingly, the plaintiff's above assertion on the premise that the plaintiff directly cultivated the farmland in this case for eight years or after 204, and the disposition in this case is legitimate.

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.