Daegu District Court 2010Guhap4539 (No. 21, 2011)

Cho High 2010Gu0158 ( October 07, 2010)

It is difficult to recognize land as being valuable for not less than eight years;

In light of the fact that pharmacy management and other businesses have been operated together, considerable scale of transfer land has been owned by other land, and the fact that neighboring residents have no own fact at the time of local confirmation by the tax authorities, it is difficult to recognize as being self-sufficient for not less than eight years in light of the fact that the tax authorities have prepared and submitted a confirmation document to the effect that

Article 69 of the Restriction of Special Taxation Act

2011Nu2676 Revocation of Disposition of Imposing capital gains tax

Quantity XX

Head of the tax office

Daegu District Court Decision 2010Guhap4539 Decided September 21, 2011

June 29, 2012

August 17, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's rejection disposition of correction of capital gains tax against the plaintiff on June 26, 2009 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On March 8, 197, the Plaintiff acquired 00 m20-3 m241 m2 (hereinafter referred to as "second m2 m2") such as Sincheon-si, Sincheon-si (hereinafter referred to as "Yacheon-si, Sin-si") and owned 133 m2 (hereinafter referred to as "third m2") each of the instant lands around October 1, 2007, and around January 15, 1987, the Plaintiff acquired m200-109 m23 m2 (hereinafter referred to as "3 m2," including 1,2, and 3 m2 and hereinafter referred to as "the instant land"). The Plaintiff transferred the entire land of this case around October 1, 2007.

B. On November 23, 2007, the Plaintiff filed an application for reduction or exemption of capital gains tax pursuant to Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 9276 of Dec. 29, 2008; hereinafter referred to as the "former Restriction of Special Taxation Act") with the Defendant on the ground that he directly cultivated the instant land for not less than eight years, upon filing a preliminary return on the tax base of capital gains tax on the instant land, and requested the Defendant to file a revised return without recognizing it through on-site verification, and the Plaintiff did not pay the amount of capital gains tax after filing a revised return of 00 won if the Plaintiff’s application for reduction or exemption is not recognized on April 28, 2009.

C. On May 19, 2009, the Plaintiff filed an application for reduction or exemption on the ground that the initial application for reduction or exemption was lawful for the direct cultivation of the Plaintiff for at least eight years. However, on June 26, 2009, the Defendant rejected the Plaintiff’s request for correction on the ground that it was not recognized that the Plaintiff had cultivated directly for at least eight years (hereinafter “instant disposition”), and notified the Plaintiff of the payment of the amount of tax in order to collect KRW 00 of the transfer income tax for the year 2007, for which the Plaintiff had not already paid the revised return (the Defendant’s payment of the amount of tax on August 4, 201, by ex officio rectification from KRW 00 to KRW 00, the transfer income tax for the year 2007 remaining after ex officio reduction of the amount of tax due to the previous revised return from KRW 000 to KRW 00).

D. The Plaintiff appealed and filed a request for a trial with the Tax Tribunal on December 29, 2009 on September 14, 2009, but was dismissed on October 7, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 8, Eul evidence 3, 5, Eul evidence 1, 4, 9-1, 2, and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The plaintiff acquired the land of this case and directly cultivated the land of this case as orchard for not less than 8 years from the date of 1998, along with his father and wife living together with his father and wife who lived with the pharmacy after the acquisition of the land of this case, and thus, the transfer income tax on the land of this case shall be reduced or exempted in full pursuant to Article 69 of the former Restriction of Special Taxation Act, but the disposition

that is illegal.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. Article 69(1) of the former Act on the Special Cases of Tax Restriction provides that the tax amount equivalent to 100/100 of transfer income tax shall be reduced or exempted for the income accruing from the transfer of land prescribed by the Presidential Decree among the land which is subject to agricultural income tax, which is directly cultivated by the resident who resides in the location of the farmland for not less than eight years, and Article 66(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 20620 of Feb. 22, 2008) provides that the resident who resides in the location of the farmland under the main sentence of Article 69(1) of the former Enforcement Decree of the Restriction of Special Taxation Act refers to the person who has cultivated the farmland while residing in the Si/Gun/Gu where the farmland is located or in the area adjacent to the Si/Gun/Gu where the farmland is located for not less than eight years, and Article 69(12) of the same Act provides that the resident is constantly engaged in the cultivation of agricultural products or perennial plants in such farmland or by cultivating or by one-half labor force.

The language and meaning of each provision, the former Restriction of Special Taxation Act, and its Enforcement Decree do not separately stipulate the concept of ‘direct cultivation' or ‘self cultivation' which is one of the requirements for reduction or exemption of capital gains tax. At that time, the Supreme Court interpreted that the meaning of ‘direct cultivation' or ‘self cultivation' includes not only the case where the transferor cultivates another person under his responsibility and account, but also the case where he cultivates another person or causes his family living together with the same household to cultivate it (see, e.g., Supreme Court Decisions 92Nu4642, Oct. 9, 199; 2003Du2465, May 30, 2003; 194Nu265, Oct. 21, 2094; 200Da16629, Feb. 26, 206).

Therefore, as to whether "direct farming" is "direct farming of farmland subject to reduction or exemption of capital gains tax, it shall be recognized that a person engaged in agriculture is cultivated directly regardless of his/her own labor ratio, and a person engaged in part for reasons such as having other occupation, not regular engaged in agriculture, shall be deemed directly cultivated only when the labor ratio of "self" excluding his/her family members, etc. during the entire farming work is not less than 1/2.

B. The Plaintiff asserts that Article 66(12) of the former Enforcement Decree of the Restriction of Special Taxation Act, which was newly established on February 9, 2006, stipulates the meaning of "direct farming" as a requirement for tax reduction and exemption without specific delegation by law, is invalid in violation of the principle of no taxation without law.

As seen earlier, as the Supreme Court declared that the land directly cultivated for not less than eight years under Article 69(1) of the former Restriction of Special Taxation Act is subject to exemption from capital gains tax, the specific scope shall be prescribed by the Presidential Decree. Article 66(4) through (8) of the Enforcement Decree of the same Act provides for the object excluded from the farmland cultivated by himself/herself for not less than eight years. Article 2(5) of the Enforcement Decree of the same Act provides for the purpose of "direct cultivation" in the same manner as the self-defense provision under Article 2 subparag. 5 of the Farmland Act. Thus, it cannot be deemed as an invalid provision without any ground for delegation under Article 66(12) of the Enforcement Decree of the Restriction of Special Taxation Act (see Supreme Court Decision 2010Du8423, Sept. 30, 2010

C. Based on the above legal principles, the Plaintiff’s 1-4 evidence No. 2, Gap’s 1-2, Gap’s 1-7 evidence No. 4, Gap’s 6-1-7, Gap’s 6-1 and 7-7 evidence No. 9, and the witnessB of the first instance trial, thisCC, and YD’s 9-7 testimony were prepared on October 5, 192, and the Plaintiff’s 1-1-6-1-6-1-9-1-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-3-2-3-2-3-2-3-2-4-2-3-2-3-4-4-4-2-3-3-3-3-3-4-4-4-4-3-3-3-3-3-3-3-4-3-4-3-4-4-3-3-3-3-3-3-4

However, according to the purport of the whole pleadings with respect to evidence Nos. 2 and 8 evidence Nos. 6, 12, 13, and 14 as well as the testimony of Y before the trial. ① The plaintiff, a pharmacist from around 1967 before acquiring the land in this case, was operating a pharmacy in YY, and from around March 1984 to December 19, 1989, the plaintiff had been working as a member of the above Ri with respect to the above 1st, 2, and 3 golf membership from around July 1988; ② the plaintiff and YCC did not directly own the plaintiff's 1st, 80 square meters of the land in this case as the witness at the time of the above 1st rith rith rith rith rith rith rith rith rith rith rith rith rith rith rith rith rith rith rith rith rith rith rith rith rith rith.

D. In full view of the above facts, the farmland ledger is insufficient to use administrative internal data prepared and kept for the purpose of farmland management and the efficient promotion of agricultural policies as data for identifying persons eligible for tax reduction and exemption (in addition, the Gu or 3 land is not recorded in the farmland ledger, and the testimony about the self-defense of both the plaintiff and his family members is not clear that the plaintiff cultivated the land of this case together with his family members, such as the plaintiff's parents and wife, for 8 years or longer, and even if the plaintiff cultivated the land of this case with his family members for 8 years or longer, it is difficult to view that the plaintiff had a considerable labor force to have been invested in the land of this case, which is the plaintiff's total area of 1.2 years or more, in light of the fact that the plaintiff had no choice but to have been engaged in the farming business of this case, such as 1/200 or more of the total size of the land of this case, and that the plaintiff had no choice but to have been able to use the land of this case for 1/2 years or more.

Therefore, since the Plaintiff cannot be deemed to have "direct cultivation" for not less than 8 years, the Plaintiff's assertion based on the premise that the Plaintiff's direct cultivation is recognized is not reasonable, and the instant disposition that rejected the Plaintiff's request for correction of transfer income tax without applying reduction or exemption provisions on the ground that the instant land does not constitute farmland cultivated directly for not less than 8 years.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed without any reasonable ground, and the judgment of the court of first instance with different conclusions is unfair, and it is so revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.