early 2014 Heavy0563 (Law No. 18, 2014)

It means the cultivation of 1/2 or more of farming work with his own labor for the self-defense of substitute farmland.

In a case where a resident engages in the cultivation of crops or the culture of perennial plants on his own farmland, or engages in the cultivation or cultivation of not less than 1/2 of the farming works with his own labor, and where it is merely an indirect management in concentrate on another occupation, it shall not be deemed that it constitutes such a case.

Article 70 of the Restriction of Special Taxation Act: Reduction or exemption of transfer income tax on farmland substitute land

Incheon District Court 2014Gudan10575 Revocation of Disposition of Imposing Capital Gains Tax

head of ○ ○

○○ Head of tax office

September 15, 2015

November 24, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's rejection disposition against the plaintiff on October 000 against the plaintiff of 000 shall be revoked.

1. Details of the disposition;

(a) Acquisition and transfer of real estate;

On October 00, 000, the Plaintiff acquired and owned 0,000 square meters of 0,000 square meters (hereinafter “instant land”) from ○○-dong, Incheon, ○○-dong, 000, and on October 00, 000, and acquired an agreement on public land at ○○○○ on October 00, 00.

On October 0, 000, Incheon ○○○○○○○○○○○ on the ground of B, and acquired 0,000 square meters (hereinafter referred to as “large farmland”) of 0,00 square meters.

(b) Imposition of capital gains tax;

On October 0, 000, the Plaintiff filed a preliminary return on the tax base of transfer income following the transfer of the instant land to the Defendant, but did not pay it. On October 0, 000, the Defendant imposed and notified the Plaintiff of KRW 00,000,000 (including additional tax) for the transfer income tax reverted to the Plaintiff in 000.

(c) Disposition of rejecting requests for revision of transfer income tax;

As seen earlier, on October 0, 000, the Plaintiff acquired substitute farmland from the Defendant, and the Plaintiff acquired substitute farmland directly after the transfer of the instant land, so the Plaintiff filed a request for correction of the effect that capital gains tax is reduced or exempted pursuant to Article 70(1) of the former Restriction of Special Taxation Act (amended by Act No. 111133, Dec. 31, 201; hereinafter the same). On October 00, 200, the Defendant issued a disposition rejecting the Plaintiff’s request for correction on the ground that the Plaintiff did not have any direct control over substitute farmland.

(d) Request for a trial and the result thereof;

On October 00, 000, the plaintiff appealed with the disposition of this case and filed an appeal with the Tax Tribunal, but the plaintiff did not object to the disposition of this case.

On October 00, 000, it was dismissed.

[Ground of recognition] Facts without dispute, Gap 1, 2, 4, Eul 1 through 3, 6, 7, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Since the Plaintiff acquired all of the instant land and substitute farmland and acquired it directly, the transfer income tax following the transfer of the instant land pursuant to Article 70(1) of the former Restriction of Special Taxation Act should be reduced or exempted. However, the Defendant’s disposition of this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

Article 70(1) of the former Restriction of Special Taxation Act and Article 67(1), (2), and (3)1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 2356, Dec. 8, 2011; hereinafter the same) stipulate the requirements for reduction or exemption of capital gains tax on farmland substitute land. The purport of the provision that grants exemption of capital gains tax on substitute land for farmland lies in protecting farmers through free permission and guarantee of substitution of farmland, or in promoting agricultural development and encouragement. Therefore, it should be limited where selling farmland after acquisition and sale of farmland for the purpose of substitute land due to necessity for cultivation. Thus, the interpretation of Article 67(3)1 of the former Enforcement Decree of the Restriction of Special Taxation Act "where a person resides in a new location of farmland for more than three years and a person residing and residing for more than three years should be the same period unless there are special circumstances (see, e.g., Supreme Court Decision 200Du5294, Sept. 5, 2003).

At this time, the burden of proving the fact of residing and directly cultivating substitute farmland is against a taxpayer who asserts the reduction or exemption of capital gains tax (see, e.g., Supreme Court Decision 94Nu996, Oct. 21, 1994). The principle of strict interpretation derived from the principle of no taxation without law applies not only to cases that meet the taxation requirements, but also to cases that meet the requirements of non-taxation and tax reduction or exemption. As such, extensively interpreting or analogical interpretation of the requirements of tax exemption or tax exemption without any justifiable reason leads to a result contrary to the principle of public taxation, which is the basic ideology of tax law, and thus, it is not permissible (see, e.g., Supreme Court Decision 2005Da19163, May 25, 2006)

On the other hand, the self-cultivation of substitute farmland means that a resident cultivates or cultivates crops in his own farmland.

The meaning of “one-half or more self-working capacity” refers to engaging in the cultivation of perennial plants at all times or cultivating or cultivating one-half or more of them with their own labor, and the meaning of “one-half or more self-working capacity” should be determined as to whether a person directly cultivates farmland by interpreting it as grammatic (see, e.g., Supreme Court Decision 2010Du8423, Sept. 30, 201). In such cases, as long as a person directly engaged in farming concurrently engages in other occupation, even if he/she concurrently engages in other occupation, it may not be deemed as falling under one’s own cultivation, but if he/she indirectly engages in other occupation while emphasizing it in other occupation (see, e.g., Supreme Court Decision 2002Du

2) Whether the requirements for self-sufficiency are met

With respect to whether the Plaintiff directly cultivated the substitute farmland for not less than three years, the health stand, Gap through 8.

In light of the following circumstances, the Plaintiff’s submission of materials alone is insufficient to recognize that the Plaintiff cultivated 1/2 or more of farming work with its own labor, and there is no evidence to acknowledge otherwise.

○ The Plaintiff, a police officer, has acquired substitute farmland, and thereafter ○○ Police Station in Incheon ○○.

In the ○○ District, 4 parts of work (24 hours out of total 96 hours) are assigned in the same manner as the following table:

○ The Plaintiff’s home from the acquisition of the substitute farmland to the opening of the school school as of October 0, 000.

In order to go up to the large-to-land farmland, a car can only be driven and used. However, the required time was about three hours on the basis of letter, and the Plaintiff purchased from his credit card on October 0, 000, October 0, 000, October 0, 000, October 0, 000, October 0, 000, October 0, 000, October 0, 000, October 0, 000, October 0, 000, October 0, 000, October 0, 000, October 0, 000, and October 0, 000.

Although the Plaintiff asserts that he directly cultivated substitute farmland, the Plaintiff did not submit objective data on how to purchase goods necessary for rice sheds, such as fertilizers and agrochemicals, harvested rice produced in substitute farmland, and on how to dispose of rice produced in substitute farmland, and also on how to store and manage farming materials, etc. necessary for rice shed.

○ In light of the Plaintiff’s occupation and work method as above, the time required for the Plaintiff’s own farmland to go to the Plaintiff’s own house, and the details of purchase of round-to-down tickets, etc., the Plaintiff does not seem to have cultivated the farmland directly.

3) Sub-decisions

Therefore, the disposition of this case based on the premise that the plaintiff did not cultivate substitute farmland directly.

Law is legitimate.

3. Conclusion

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