District Court-2014-Gu -5222

If it is only a self-employed farmer that indirectly operates the agriculture while concentrateing on other occupations, it is not a self-employed farmer.

(1) The disposition of this case denying the exemption or reduction of capital gains tax against the plaintiff was legitimate, since it was not proved that the plaintiff had cultivated or cultivated one-half or more of the farming works with his own labor for not less than eight years on the land of this case.

Seoul High Court-2015-Nu-31291 ( October 07, 2015)

Manhae Line

Head of the High Tax Office

December 15, 2014

oly 16, 2015

o October 07, 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 disposition of imposition of KRW 60,189,320 (including additional tax) for the transfer income tax of KRW 60,189,320 (including additional tax) for the year 2011 against the Plaintiff on August 1, 2013 is revoked (the phrase “ August 30, 2013” is obvious that it is a clerical error of August 1, 2013, and thus, it is corrected later).

1. Details of the disposition;

A. On January 3, 2011, the Plaintiff sold 00,000 - 00 -00 - 00 - 00 - 00 - 00 - 000 - 661 m2 (hereinafter “instant land”) acquired on January 9, 2003 to Nonparty D, and completed the registration of ownership transfer on January 12, 201.

B. On March 31, 201, the Plaintiff: (a) filed a preliminary return on the tax base of capital gains on the premise that the Plaintiff’s act of transfer of the said land constitutes subject to the special deduction for long-term holding under the Income Tax Act and the reduction or exemption of capital gains tax under the Restriction of Special Taxation Act on the grounds that the Plaintiff owned the said land for at least eight years; (b) based on the premise that the act of transfer of the said land constitutes subject to the special deduction for long-term holding under the Income Tax Act; and (c) the amount calculated by applying the special deduction for long-term holding of KRW 45,504,168 from the said gains on transfer, 14,0

C. On August 30, 2013, the Defendant, after pre-assessment review, issued a notice of correction and notification of capital gains tax reduction and exemption and special deduction for long-term holding (including additional tax; hereinafter “instant disposition”) to the Plaintiff on August 30, 201, by excluding the application of capital gains tax reduction and exemption and special deduction for long-term holding for not less than eight years, on the ground that the Plaintiff was obligated to meet the self-sufficiency requirements (hereinafter “instant disposition”).

D. On October 10, 2013, the Plaintiff filed an appeal with the Tax Tribunal. On December 31, 2013, the said Tribunal decided that the Plaintiff’s appeal is dismissed.

[Ground of recognition] Unsatisfy, Gap 1 to 3 evidence, Gap 8 to 11 evidence, Eul 1 evidence (including each number), all the arguments

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

After acquiring the instant land, approximately half of the total amount of 100 square meters, the Plaintiff

In approximately 100, the remaining half of them cultivated dry field crops, such as sssssss Co., Ltd., after acquiring the instant land, the Plaintiff continued to work for sssss Co., Ltd. until the time of transfer. However, since the Plaintiff did not work for 11 days or more per month in the Plaintiff’s work environment, it was possible for the Plaintiff to cultivate dry field crops directly from 1/2 of the instant land (in the case of lost trees, the special work force is not required for seed cultivation) and grow dry field crops to the extent of hobby life by taking advantage of the help of neighboring residents (sss, sssssss) only in the case of shortage of daily losses. The cultivated crops were consumed by dividing them into neighboring residents who consumed or attempted to consume by the Plaintiff, or the Plaintiff’s company’s club members. Accordingly, this disposition was unlawful.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Determination

Under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring special circumstances, regardless of whether they are taxable or non-taxable requirements or tax exemption requirements, and shall not be permitted to be expanded, interpreted or analogically interpreted without reasonable grounds. In particular, it is inconsistent with the principle of fair taxation to strictly interpret the provisions that can be clearly viewed as preferential provisions among the requirements for reduction and exemption requirements (see Supreme Court Decision 2011Du20116, Dec. 13, 201).

In addition, even if the fact that the land has been cultivated as farmland is recognized, it is not presumed that the owner is a self-fluored fact, and the fact that the land has been self-fluored as farmland must be proved by the transferor who asserts such fact (see, e.g., Supreme Court Decision 92Nu1893, Jul. 13, 1993).

According to this, in the case of the plaintiff who was not a person who was engaged in the cultivation of crops in the instant land, the plaintiff must prove that the plaintiff had cultivated or cultivated not less than 1/2 of the farming work with his own labor in relation to the instant land for not less than eight years in order to be subject to the requirements for reduction and exemption of capital gains tax pursuant to the above relevant laws and regulations

For example, each entry of Gap evidence Nos. 5-1 through 3 as shown in the plaintiff's argument is consistent with the first entry:

In light of the following circumstances known by each evidence, it is difficult to believe it as it is, and there is not sufficient evidence to acknowledge it by itself, each statement of evidence No. 4-1 to 5, and there is no other evidence to prove the facts alleged by the plaintiff (In other words, it is deemed that sss and ssss were mainly cultivated and managed the land of this case, not the plaintiff, and the plaintiff did so at the end of the week, and it was limited to the extent that the plaintiff did so like it).

① 원고가 이 사건 토지와 관련하여 바쁠 때 도움을 받았다고 하는 권ss, 안ss

In the answer letter submitted to the defendant, the couple stated that "a farmer, a farmer, and a farmer's land in relation to his occupation" was entered as "a farmer and a farmer's land in relation to his occupation," and that "the plaintiff was aware of the original situation with the plaintiff, and entered the purport that "the plaintiff was drinking as a brub at the weekend (after the death of a farmer)" as soon as possible.

② From around 2006 to around 2010, the Plaintiff purchased seeds, agrochemicals, fertilizers, etc. at the agricultural cooperatives or pesticide sales offices at the Plaintiff’s expense. However, the Plaintiff’s small amount between KRW 20,000 to KRW 60,000 per year, which is the small amount of 100,000 that is the purchase of dry field farmers.

③ The farmland ledger against the Plaintiff does not have been prepared, and the Plaintiff shall have the method of preserving and using the farmland ledger.

It has been argued that yellow dust, etc. has not been clearly disclosed, and there have been many cases related to consumption of harvested crops, and that it has been divided into sss and sss or to those who have given or become a child (including a company person).

④ The Plaintiff continues to hold the instant land during the period of possession, sssssss located in Seo-dong, Seo-gu, Incheon.

As of 2009, the director was working in a stock company, and the director was paid the annual salary of KRW 84,000,000.

⑤ 원고는 이 사건 토지 보유기간 중 대부분을 ㅇㅇ ㅇㅇ ㅇㅇㅇ 18, ddd동 ㅇㅇㅇㅇ호(dd동, dd아파트)에서 실제 거주하고 있었는데, 위 거주지에서는 혼자서 살고 있었던 것으로 보인다. 이 사건 토지와 위 아파트는 직선거리로 14km이고 차로 33분 정도의 거리이다.

Ultimately, the Plaintiff’s own labor force of not less than 1/2 of farming operations for not less than 8 years with respect to the instant land.

Since it was not proved that the plaintiff had been cultivated or cultivated, the disposition of this case denying the reduction or exemption of capital gains tax against the plaintiff is legitimate.