In the case of a large-scale reduction or exemption, residing in the previous location of farmland for three or more years as of the date of transfer, and directly cultivating the previous farmland.

In the case of substitute farmland for farmland, the previous farmland shall be cultivated directly while residing in the location of the previous farmland, and as of the date of transfer, business registration shall be made as a business leasing building materials in the case of the farmland in this case, the building report on the land in this case was filed, the submission of revocation sources, and the restoration work was conducted for landscape trees cultivation, etc., and thus, the disposition of exclusion from capital gains tax reduction or exemption is legitimate.

Article 70 of the Restriction of Special Taxation Act

2014Gupoly 729 Revocation of Disposition of Imposing Transfer Income Tax

Kim AA et al.

Daejeon Head of the District Tax Office

July 25, 2014

August 29, 2014

1. The plaintiff (appointed party)'s claim is all dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

Cheong-gu Office

The disposition of capital gains tax imposed by the Defendant on April 2, 2013 against the Plaintiff (Appointed Party; hereinafter referred to as “Plaintiff”) and both appointed parties B shall be revoked.

1. Details of the disposition;

가. 원고 및 선정자 양BB(이하 '선정자'라고만 한다)는 부부로서 각각 충남 ㅁㅁ군 ㅁㅁ면 ㅁㅁ리 158-1 전 1,691㎡(이하 '이 사건 토지'라 한다)의 소유권 중 1/2 지분을 2005. 5. 20. 취득하였다가 2012. 8. 30. 양도하였다.

B. On October 30, 2012, the Plaintiff and the selector filed an application for reduction or exemption under Article 70(3) of the former Restriction of Special Taxation Act (amended by Act No. 11614, Jan. 1, 2013; hereinafter “former Restriction of Special Taxation Act”).

C. On April 2, 2013, the Defendant transferred the instant land to the Plaintiff and the Selection respectively at the time of transfer.

It is difficult to regard it as farmland, and the plaintiff and the selection did not directly cultivate for not less than three years, and thus does not meet the requirements for reduction and exemption." The reduction and exemption were not accepted, and the imposition of capital gains tax (including additional tax) 000 won for the year 2012 was imposed (hereinafter referred to as "the disposition of this case was added to each disposition").

[Ground of recognition] Facts without dispute, Gap's evidence 1, 2, Gap's evidence 9, Eul's evidence 1 and 2, the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's assertion

On March 7, 2008 to November 5, 2010, the Plaintiff and the selector registered the business of leasing construction materials under the trade name of "PPP industry" on the instant land. However, the Plaintiff and the selector applied for construction permission on May 20, 2008, but did not perform construction until the construction permission was revoked on April 14, 2010; the Plaintiff and the selector received farmland preservation charges paid at the time of applying for construction permission on May 2010; the Defendant issued the disposition of this case on the basis of only different statements from the fact of neighboring residents filing complaints and complaints against the Plaintiff and the selector on several occasions; the Plaintiff and the selector was within 20 minutes of the instant land from its own house to its acquisition; the size of the land used as farmland in this case was within 90 years from its acquisition; and the Plaintiff and the selector was within 20 years from the previous Enforcement Decree of the Restriction of Special Taxation Act to the extent that it could not be proven to the extent that it was possible to employ the Plaintiff and others.

(1) The instant disposition satisfies the requirements for reduction or exemption under Article 67. Therefore, there is an error of deviation from and abuse of discretionary power.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

Article 70 of the former Restriction of Special Taxation Act and Article 67 of the former Enforcement Decree of the Restriction of Special Taxation Act allow free substitution of farmland.

The purpose of this provision is to protect farmers throughout the country or to promote the development and encouragement of agriculture.

If a person intends to be eligible to have a capital gains tax reduced or exempted, he/she shall directly cultivate the previous farmland for the same period while residing in the previous location for not less than three years. Here, direct cultivation means that a resident engages in cultivating crops or growing perennial plants on his/her own farmland or cultivating or cultivating at least half of farming works with his/her own labor, and the previous farmland shall be farmland cultivated directly even on the date of transfer.

살피건대, 갑 1, 2, 3, 10호증, 을 4, 5, 8호증(을 4, 5호증은 각 가지번호 포함)의 각 기재 및 변론 전체의 취지에 의하여 인정되는 다음과 같은 사정, 즉 ① 원고 및 선정자가 2008. 3. 7.~2010. 11. 5. 이 사건 토지를 사업장으로 하여 건축자재 임대를 목적으로 하는 상호 'PPPP산업'으로 사업자등록을 한 점, ② 원고 및 선정자가 각각 2008. 5. 20. ㅁㅁ군청에 이 사건 토지상 건축면적 198㎡의 제1종근린생활시설(소매점)을 신축하는 내용으로 건축신고를 하였다가, 2010. 4. 13. ㅁㅁ군청에 건축신고 취소원을 제출하여 2010. 4. 14. 건축신고 취소를 받은 점, ③ 원고 및 선정자가 2010. 4. 28. OO면장으로부터 이 사건 토지 일부에 대한 도로점용허가를 받았고, 2010. 5.경 조경수 재배를 위하여 복토작업을 한 점, ④ ㅁㅁ군수가 2012. 6. 7. 원고 및 선정자에게 "2012. 8. 7.까지 이 사건 토지를 개발행위신청시 접수된 설계서의 원 지반까지 원상회복하고 본래의 농지로 활용하라."는 개발행위 원상회복 요청을 하였고, 원고 및 선정자가 주식회사 OO건설에게 이 사건 토지상 토사 제거, 복토 및 정리작업을 시킨 후 2012. 8. 2. 700만 원을 지급한 점, ⑤ 농지원부(갑 1호증)는 2007. 8. 16. 작성된 것이고, 농지법 제50조 제2항에 의하여 자경증명은 '자경하고 있는' 농업인 또는 농업법인의 신청에 따라 발급하는 것인데, OO면장이 발급한 자경증명(갑 2호증)은 원고 및 선정자가 이 사건 토지를 양도한 이후 시점인 2013. 2. 8. 작성된 것이며, 갑 3호증은 원고 및 선정자가 한국농어촌공사를 수령인으로 하여 2010. 5.경 작성한 농지보전부담금환급금 및 환급가산금청구서에 불과하여 위 증거만으로는 관계 행정청이나 한국농어촌공사가 2010. 5.경 이 사건 토지가 실제 농지로 이용되고 있는지 여부를 확인하였다고 인정하기 부족한 점 등을 종합하면 이 사건 토지가 양도 당시 원고 및 선정자가 직접 경작하고 있는 농지라는 점에 관하여 갑 1 내지 6호증(갑 4, 5호증은 각 가지번호 포함)의 각 기재 또는 영상만으로는 이를 인정하기 부족하고, 달리 이를 인정할 증거가 없다.

Therefore, the plaintiff's assertion is without merit, and the disposition of this case is legitimate.

3.In conclusion

Then, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

Related Acts and subordinate statutes

◈구 조세특례제한법(2013. 1. 1. 법률 제11614호로 개정되기 전의 것)

Article 70 (Abatement or Exemption of Transfer Income Tax for Substitute Land for Farmland)

(1) With respect to any income accruing from the substitute land which is cultivated directly by a resident prescribed by Presidential Decree as necessary for the cultivation of farmland in such manner as prescribed by Presidential Decree, the amount of tax equivalent to 100/100 of capital gains tax shall be reduced or exempted: Provided, That where the relevant land is incorporated into a residential area, commercial area, and industrial area under the National Land Planning and Utilization Act (hereafter in this Article, referred to as "residential area, etc.") or a land, other than farmland, is designated as a reserved land for replotting before a disposition of replotting is taken pursuant to the Urban Development Act or other Acts, capital gains tax shall be exempted only on the income prescribed by Presidential Decree which is included in the residential area, etc. or occurred until the date of such designation.

(2) Paragraph (1) shall not apply where any land that is transferred or acquired pursuant to paragraph (1) is included in the residential area, etc. under the National Land Planning and Utilization Act, or is prescribed by Presidential Decree as land reserved for replotting other than as farmland prior to the disposition of replotting is taken pursuant to the Urban Development Act

(3) A person who desires to be eligible for reduction or exemption under paragraph (1) shall apply for reduction or exemption, as prescribed by Presidential Decree.

[Specialized Amendment, January 1, 2010]

◈구 조세특례제한법 시행령(2013. 2. 15. 대통령령 제24368호로 개정되기 전의 것)

Article 67 (Requirements, etc. for Reduction or Exemption of Transfer Income Tax for Substitute Land for Farmland)

(1) "resident prescribed by Presidential Decree" in Article 70 (1) of the Act means a person who has resided in any of the following areas (including an area corresponding to the relevant area at the time of commencement of cultivation, but does not correspond thereto due to a reorganization of administrative districts, etc.; hereafter in this Article, referred to as "location of a farmland"), for at least three years:

1. An area within a Si (including an administrative city established pursuant to Article 15 (2) of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City; hereafter the same shall apply in this Article), Gun or Gu (referring to an autonomous Gu; hereafter the same shall apply in this paragraph) in which farmland

2. An area located in a Si/Gun/Gu adjacent to an area referred to in subparagraph 1.

3. An area within 20 kilometers in a straight line from the farmland concerned.

(2) "Direct cultivation in a manner prescribed by Presidential Decree" in the main sentence of Article 70 (1) of the Act means that a resident is engaged in cultivating crops or growing perennial plants on his/her own farmland at least 1/2 of the farming works with his/her own labor.

(3) In cases prescribed by Presidential Decree pursuant to Article 70 (1) of the Act, the substitute farmland means any of the following cases:

1. Where a person who has cultivated while residing in a location of previous farmland for not less than three years and acquired another farmland within one year (two years in cases of expropriation by consultation or expropriation under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects or by expropriation under other Acts) from the date of transfer of previous farmland, and where he/she has cultivated while residing in a location of new farmland for not less than three consecutive years and falls under any of the following items

(a) Newly acquired farmland whose area is not less than one half of the area of farmland to be transferred; and

(b) Newly acquired farmland whose value is not less than one third of the value of farmland to be transferred.

2. Where a person who has cultivated while residing in a location of previous farmland for not less than three years, transfers the previous farmland within one year from the date of acquisition of new farmland, and has cultivated the newly acquired farmland while residing in a location of new farmland for not less than three consecutive years, and falls under any of the following items:

(a) Newly acquired farmland whose area is not less than one half of the area of farmland to be transferred; and

(b) Newly acquired farmland whose value is not less than one third of the value of farmland to be transferred.

(4) In applying the provisions of paragraph (3) 1 and 2, where new farmland is purchased by consultation or expropriated under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects or expropriated under other Acts within three years after it is acquired, it shall be deemed that one has cultivated while residing in the location of such new farmland for at least three years.

(5) In applying the provisions of paragraph (3) 1 and 2, where the farmland owner dies within three years after acquiring a new farmland, and where his/her heir has continuously cultivated while residing in a location of such farmland, the period of cultivation of the decedent and that of heir shall be aggregated.

(6) "Income prescribed by Presidential Decree" in the proviso to Article 70 (1) of the Act means the amount calculated by the following formula among the amount of capital gains under Article 95 (1) of the Income Tax Act (hereafter referred to as "amount of capital gains" in this paragraph):

Provided, That in cases of purchase by consultation or expropriation pursuant to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects and other Acts, the standard market price at the time of transfer shall be the standard market price which serves as the basis for calculating the compensation amount during the following formula:

Transfer income amount ¡¿ (Standard market price on the date of incorporation into a residential area, etc. or of being designated as a planned land substitution - standard market price at the time of acquisition)/

(7) "Land prescribed by Presidential Decree" in Article 70 (2) of the Act means any of the following farmland:

1. Farmland located in a Special Metropolitan City, Metropolitan City (excluding Guns located in Metropolitan Cities), or Si [excluding Eup/Myeon areas in a Si in an urban and rural complex form established pursuant to Article 3 (4) of the Local Autonomy Act and Eup/Myeon areas in an administrative city established pursuant to Article 15 (2) of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City] as of the date of transfer, for which three years have passed from the date of incorporation into a residential, commercial or industrial area under the National Land Planning and Utilization Act: Provided, That any of the following borders:

50,000,000

(a) Where three years have passed since the date of incorporation into the relevant area due to the implementation of a development project in a development project area (referring to a single project execution area, the project approval of which is identical) in which the landowner in the project execution area is at least one thousand, or the area of which is at least the scale prescribed by Ordinance of the Ministry of Strategy and Finance, and due to the implementation of the development project, and

(b) Where land is incorporated into a residential, commercial or industrial area under the National Land Planning and Utilization Act due to the implementation of a development project in the development project area which is the State, a local government or a public institution prescribed by Ordinance of the Ministry of Strategy and Finance and falls under extenuating circumstances prescribed by Ordinance

2. Where any land, other than farmland, is designated prior to a replotting disposition pursuant to the Urban Development Act or other Acts, farmland for which three years have passed from the date of such designation: Provided, That the portion corresponding to the liquidation money for replotting delivered according to a replotting disposition shall be excluded;

(8) Any person who intends to apply for reduction or exemption of capital gains tax under Article 70 (3) of the Act shall submit, to the head of tax office having jurisdiction over the place of tax payment, an application for tax reduction or exemption prescribed by Ordinance of the Ministry of Strategy and Finance, along with his/her tax base return (including a preliminary return) for the taxable year to which the date of transfer of the relevant farmland belongs.

[This Article-Newly Inserted by Act No. 783, Dec. 31, 2005]

◈농지법

Article 38 ( farmland Preservation Charges)

(4) In any of the following cases, a person who operates and manages the Farmland Management Fund shall refund farmland preservation charges corresponding thereto, as prescribed by Presidential Decree:

1. Where permission granted to a person who has paid farmland preservation charges is revoked pursuant to Article 39;

2. Where the business plan of a person who has paid farmland preservation charges is modified;

3. Where the area of farmland to be diverted has been reduced compared to the original area for reasons corresponding thereto.

Article 50 (Public Perusal of Farmland Ledger or Issuance of Copy, etc. Thereof)

(1) Where the head of a Si/Gu/Eup/Myeon receives an application for perusal of a farmland ledger or a request for issuance of a certified copy thereof, he/she shall allow the perusal of the farmland ledger or issue a certified copy thereof, as prescribed by Ordinance of the Ministry of Agriculture, Food and Rural Affairs.

(2) The head of a Si/Gu/Eup/Myeon shall, upon request of a farmer or an agricultural corporation under self-culpation, issue a self-culpation certificate, as prescribed by Ordinance of the Ministry of Agriculture, Food and Rural Affairs.

◈농지법 시행령

Article 51 (Refund of Farmland Preservation Charges)

(1) Where an amount overpaid or erroneously paid, or an amount to be refunded pursuant to Article 38 (4) of the Act, out of the amount paid by a person liable for payment as farmland preservation charges, the Minister of Agriculture, Food and Rural Affairs shall, without delay, determine such overpaid or erroneously paid amount or refunded amount as the refund money for farmland preservation charges, and notify the payer of farmland preservation charges and the Korea Rural Community Corporation thereof, respectively: Provided, That where he/she orders the reinstatement of farmland pursuant to Article 42 (1) 3