Cho High 2012 Before 2831 (Law No. 1129.07)

It is difficult to recognize farmland as having been directly large for not less than eight years;

Since the fact that full-time work as civil engineering technicians in a construction company during the period of farmland retention and receiving high-amount benefits, neighboring residents of farmland make a statement that they were paid cash or rice as farmland cultivation fees, and most farming works are deemed to have been performed by neighboring residents, they cannot be deemed to have been performed by proxy by proxy for at least eight years, in light of the fact that most farming works are deemed to have been performed by proxy

2012Guhap2523 Revocation of Disposition of Imposing capital gains tax

LAA

Head of Dong District Office

March 28, 2013

April 11, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of 000 won for the year 2009 against the Plaintiff on May 1, 2012 is revoked.

1. Details of the disposition;

"가. 원고는 1997' 7. 29. 충북 청원군 OO읍 OO리 000 답 848㎡ 같은 리 0000 답 1，682㎡， 같은 리 0000 답 2，854㎡， 같은 리 00000 답 457㎡(이하 '이 사건 각 농지'라 한다)를 매수하여 소유권이전등기를 마쳤는데，이 사건 각 농지가 행정중 심복합도시건설청에서 시행하는행정도시~고속철도 OO역 광역교통시설 건설공사'에 편입됨으로써 협의매수절차를 거쳐 2009. 1. 30 이 사건 각 농지를 한국토지주택공사에 양도하였다.",나. 원고는 2009. 2 경 피고에게 이 사건 각 농지가 8년 이상 직접 경작한 농지로서 조세특례제한법 제69조에 따라서 양도소득세 전액이 감면되는 것으로 하여 양도소득세 신고를 하였다.

C. The Defendant denied the transfer income tax on the ground that the Plaintiff cannot be deemed to have directly cultivated each farmland of this case for at least eight years after having conducted a local survey on each farmland of this case, and notified the Plaintiff on May 1, 2012 of KRW 000 for the transfer income tax reverted to the Plaintiff in 2009.

D. On June 14, 2012, the Plaintiff filed a petition for trial with the Tax Tribunal, but on June 9, 2012

6. A decision was made to dismiss the Plaintiff’s claim.

E. In accordance with Article 77 of the Restriction of Special Taxation Act (Reduction and Exemption of Transfer Income Tax on Land, etc. for Public Works) around October 2012, the Defendant decided to reduce the amount equivalent to KRW 000 from the above transfer income tax against the Plaintiff (hereinafter referred to as “the instant disposition”).

[Ground of Recognition] The facts without any dispute, Gap evidence 1, 2, and Eul evidence 1 (each number includes a number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful or not, the gist of the Plaintiff’s assertion

1) Although the Plaintiff directly cultivates each of the of the of the of the instant farmland, including acquiring each of the instant farmland at his own will, installing a tombstone, and directly or indirectly employing a person or a person for farming operations, such as seeding, drilling, and drilling, and satisfying the requirements of "direct farming" under Article 69 (1) of the Restriction of Special Taxation Act, the disposition of the instant farmland committed by the Defendant, which was otherwise determined by the lower court, was unlawful.

2) After the transfer of each of the instant farmland, the Plaintiff newly acquired and cultivated substitute farmland, including 000 O00,085 m2, 000 square meters, in order to the present time, and the instant disposition that did not reflect the requirements for reduction and exemption of substitute farmland under Article 70 of the Restriction of Special Taxation Act is unlawful.

(3) Article 66(13) of the Enforcement Decree of the Restriction of Special Taxation Act, which provides that "The direct cultivation means that a resident is engaged in the cultivation of crops or the growing of perennial plants on his own land or is engaged in the cultivation or cultivation of not less than 1/2 of the crops or perennial plants with his own labor" is a newly established provision on February 29, 2006, and applying the above provision to the plaintiff who had already met the period of 8 years prior to the establishment of the above provision is against the principle of prohibition of retroactive taxation," and (b) related exceptionally;

It is as shown in the attached Form.

C. Determination

1) The part concerning the assertion that the plaintiff directly cultivated each of the farmland of this case for not less than eight years

(A) In full view of Article 69(1) of the Act and Article 66(1) and (13) of the Enforcement Decree of the Act, and where a person residing in a Si/Gun/Gu where farmland is located for at least eight years, or in an area located in a Si/Gun/Gu adjacent thereto, has cultivated directly for at least eight years from the time of acquisition of the farmland until the time of transfer, the tax amount equivalent to 100/100 of the transfer income tax on the income accruing from the transfer of the land shall be reduced. The "direct cultivation" here means that the transferor is engaged in cultivating or cultivating the crops or perennial plants on his own farmland at least half of the crops or perennial plants, and the facts of the requirements for such reduction or exemption shall be proved by the plaintiff. (b) According to each of subparagraphs 3 through 8, and according to each of subparagraphs 20 through 8, the plaintiff cannot be found to have otherwise registered the farmland for 20 years from 00 to 200 years from the beginning of each of the instant farmland, and the plaintiff cannot be found to have been 20 years from each of the farmland.

다) 오히려 앞에서 인정한 사실관계와 갑 제6호증， 갑 제7호증，을 제2호증의 각 기재에 변론 전체의 취지에 의하여 인정되는 다음과 같은 사정들，즉 ① 원고는 이 사건 각 농지를 매수한 1997년경부터 위 각 농지를 매도한 2009년경까지 계속하여 이 사건 각 농지로부터 약 17km 떨어져 있는 청주시 흥덕구 OO동 0000에 거주하였고， 1997년 경부터 2007년경까지는 PP토건 주식회사에서 상시 근무하면서 매년 0000만 상당의 급여를，2007년경부터 2009년경까지는 OOO도시 주식회사(이하 'OOO도시'라 한다)에서 각 토목기술자로 상시 근무하면서 연봉 0000원 이상의 고액 급여를 각 받은 점. ② 특히 2007년경 이후 OOO도시로 이직한 이후에는 거주지와 직장 사이의 거리가 약 70km까지 떨어지게 되어 출 ・ 퇴근 등에도 많은 시간이 소요되는 등 실절적으로 이 사건 각 농지를 직접 경작할 수 있는 여건이 아니었던 점，③ 이 사건 각 농지의 인근 주민인 박QQ은 자신의 농가계(건조기， 도정기 포함)，비료， 농약 등을 이용하여 이 사건 각 농지에 관한 묘판 설치，모내기，추수，탈곡 등의 농작업을 하였고， 원고로부터 비료 및 농약에 관한 비용，위 농작업에 관한 경작료 명목으로 현금 또는 벼를 받았던바，이 사건 각 농지에 관한 대부분 주요 농작업은 인근 주민인 박QQ이 한 것으로 보이고，원고는 이에 대한 대가를 박QQ에게 지급한 것으로 보이는 점 등을 종합하면， 원고는 이 사건 각 농지를 인근 주민인 박QQ으로 하여금 대리 경작하도록 한 것으로 인정되므로，이와 다른 전제에선 원고의 이 부분 주장은 이유 없다

(ii)the part of the arguments regarding the requirements of reduction in farmland substitute land;

The entry of Gap evidence No. 9 was examined, and the plaintiff purchased each of the above farmland from YR on June 23, 2009 3,128 square meters from O0,000 U.S. O. 00 O. 00 m. 3,085 m. from S. on September 7, 2009, the plaintiff is recognized as having purchased each of the above farmland from 858 m. m. 858 m. .., and in order to be exempted from capital gains tax on substitute land under Article 70 (1) of the Enforcement Decree of the Act, the plaintiff is required to directly cultivate each of the above farmland for more than three years pursuant to Article 67 (1) and (2) of the Enforcement Decree of the Act, and there is no evidence to support that the plaintiff directly cultivated each of the above farmland of this case, and there is no ground for the plaintiff's assertion on this part.

(iii)the part concerning the assertion that it is a breach of the principle of prohibition of minor taxation.

Article 66 (13) of the Enforcement Decree of the Act applies to the provisions newly established at the time of the amendment of the Presidential Decree on February 9, 2006, which are applicable to the portion transferred after the enforcement of the above provision in accordance with Articles 1, 2 (3), and 10 of the Addenda of the Enforcement Decree of the Act (2006, 9.2.9), and as seen above, the plaintiff transferred each of the farmland of this case on February 22, 2009 after the enforcement of the above Enforcement Decree, and as long as the transfer was made after the enforcement of the above provision, the imposition of capital gains tax does not constitute retroactive taxation, and as long as the transfer was made after the enforcement of the above provision, the imposition of capital gains tax is not subject to retroactive taxation. Accordingly, the disposition applying the above provision is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.