Suwon District Court-2016-Gu Group-3202 ( April 21, 2017)

Whether it is subject to reduction or exemption of capital gains tax for self-Cultivating farmland

It is difficult to view that the Plaintiff had cultivated or cultivated his own labor force by inserting more than 1/2 of the farming work, and it is reasonable to view that the instant land was merely limited to the simple site, not to the farmland at the time of transfer.

Article 69 of the Restriction of Special Taxation Act

Seoul High Court 2017Nu49548 Revocation of Disposition of Imposing Capital Gains Tax

AA

K Director of the Korean Tax Office

2017.99.27

oly 18, 2017

1. The plaintiff's appeal is dismissed.

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

1. Quotation of judgment of the first instance;

The reasoning of the court's explanation concerning this case is as follows, and the reasoning of the judgment of the court of first instance is the same as that of the judgment of the court of first instance, except for dismissal or addition as follows. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the

2. Parts to be removed or added;

Section 21 of title 3, "2. Whether a lawsuit is lawful (the part on the confirmation of illegality of omission and the request for decision of correction)" is deleted from Section 4 to Section 10 of title 4.

3. Whether the disposition of this case is legitimate or not is "2. 2. The disposition of this case is legitimate or not."

The following is added to “(2)” in Chapter 5, Chapter 6, the following. “The interpretation of tax laws and regulations is prohibited, barring special circumstances, by blocking the requirements for taxation, non-taxation, or tax reduction or exemption under the principle of tax law, and the interpretation of tax laws and regulations is not allowed without reasonable grounds. In particular, it accords with the principle of equity in taxation to strictly interpret the provisions that can be clearly viewed as preferential provisions among the requirements for reduction or exemption (see, e.g., Supreme Court Decisions 2008Du7830, Oct. 23, 2008; 2008Du11372, Aug. 20, 209).

Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015; hereinafter the same) provides for reduction or exemption of capital gains tax on self-arable farmland. Paragraph (1) provides for "direct farming" by stipulating that a tax amount equivalent to 100/100 of capital gains tax shall be reduced on income accruing from the transfer of land prescribed by Presidential Decree, among land cultivated directly by a resident prescribed by Presidential Decree who resides in the seat of farmland for at least eight years by means prescribed by Presidential Decree.

○ Following the 19th page, the following is added. “On the other hand, the burden of proving the requirements for exemption of capital gains tax under the above provisions shall be deemed to exist on the person liable for tax payment who asserts the grounds for exemption (see, e.g., Supreme Court Decision 2013Du16531, Dec. 12, 2013).”

○ 제7쪽 제9행의 각주 "⁴��"를 삭제하고 그 부분에『(을 제7호증)』을 추가한다. ○ 제7쪽 제18행과 제19행 사이에 아래의 내용을 추가한다. 『③ 이에 대하여 원고는 설령 이 사건 토지가 농지의 요건을 갖추지 못하였다고 보더라도 이는 사실상의 현황이 분명하지 아니한 경우에 해당하므로 공부상의 등재된 현황에 의하여 공부상 지목인 임야로 보아야 한다고 주장한다.

However, in applying Article 168-7 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26067, Feb. 3, 2015; hereinafter the same) to the provisions of Article 104-3 of the Act, the determination of farmland, forest land, stock farms and other land shall be based on the actual status except as otherwise provided for in this Decree: Provided, That where the actual status is unclear, the determination of farmland, forest land, stock farms and other land shall be based on the registration on the public register.

However, the circumstances mentioned above and each statement of Gap evidence Nos. 20 through 23 submitted by the plaintiff to this court (including the number of branch numbers) can only be deemed as planting trees only to the extent that they are cut away on the land in this case. It is insufficient to recognize that the plaintiff actually cultivated crops or cultivated perennial plants by not less than 1/2 of the labor force in the land in this case owned by the plaintiff, and there is no other evidence to recognize otherwise. In addition, if the land in this case is deemed as a site, as seen earlier, if the actual status of the land in this case is deemed as a site, it is reasonable to deem that the main sentence of Article 168-7 of the former Enforcement Decree of the Income Tax Act is applied to the land in this case as a forest on which the land in this case

â………………§ 19 of the seventh 19 is regarded as â……………………………………………

3. Conclusion

Therefore, the judgment of the court of first instance is just and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

- 5