Review Transfer 2009-0115 (Law No. 22, 2009)

The meaning of direct cultivation in the reduction or exemption of capital gains tax for 8 years old farmland;

In order for direct cultivation to be recognized, unlike agricultural managers, the location, time, or direct labor force of farmers and farmland should be placed in the vicinity of time or 1/2 or more of farmers themselves, and it is excluded from cases where farmland is cultivated intermittently while cultivating farmland by employing another person in a state with another occupation.

The contents of the decision shall be the same as attached.

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 KRW 212,610,370 for the Plaintiff on February 2, 2009 shall be revoked.

1. Details of the disposition;

A. On October 26, 1995, the Plaintiff purchased the same Ri 479-2 1,255 square meters, the same Ri 479-2 1,255 square meters, and 1,078 square meters in each of the instant farmland (hereinafter “each of the instant farmland”), and completed the registration of ownership transfer on November 3, 199.

B. On May 23, 2008, the Plaintiff sold each of the instant farmland in KRW 450 million to HanB and the DefenseCC, and completed the registration of ownership transfer on June 11 of the same year.

C. On June 23, 2008, the Plaintiff filed a preliminary return of capital gains tax on the income from the transfer of each of the instant farmland to the Defendant for at least eight years under Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 9924, Jan. 1, 2010) on the grounds that the tax amount is reduced or exempted under Article 69 of the same Act.

D. On February 2, 2009, the Defendant did not apply the said reduction or exemption provisions to the Plaintiff on the ground that each of the instant farmland is not a self-arable farmland, but a non-business land under Article 104-3 (1) 1 (a) of the former Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008) and imposed capital gains tax of 212,610,370 won for the portion reverted to year 2008 by applying the heavy and tax rate of 60% (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an objection to the Defendant on February 2, 2009, but was dismissed on February 13, 2009. The Plaintiff filed a request for examination with the Commissioner of the National Tax Service on May 13, 2009, but was also dismissed on June 22, 2009.

[Ground of recognition] Facts without dispute Gap evidence Nos. 3 (including provisional number), 19, 20, Eul evidence Nos. 1 and 3-1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff had cultivated farmland directly for not less than eight years after the acquisition of each farmland of this case, and the defendant transferred the farmland of this case, but the disposition of this case is unlawful since it imposed capital gains tax on the farmland of this case as non-business

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Legislative purpose of the Act on Reduction and Exemption of Transfer Income Tax for Self-Cultivating Farmland

Article 69(1) of the former Restriction of Special Taxation Act provides that the tax amount equivalent to 100/100 of the transfer income tax shall be reduced for the income accruing from the transfer of land prescribed by the Presidential Decree among the land which is subject to taxation of agricultural income tax (including those subject to non-taxation, reduction and exemption, and small collection) by a resident prescribed by the Presidential Decree residing in a location of the farmland for not less than eight years. The legislative purpose of this provision is to promote agriculture and rural communities by preventing the speculation of farmland of non-permanent farmers under Article 121(1) of the Constitution, which declares the principle of light-free movement as the State's duty, and by lowering the tax burden of self-employed farmers for not less than eight years, in order to eliminate the inefficiency of the use of farmland caused by the absence of the system of small-scale legal relations.

(2) The meaning of "direct cultivation"

Article 69 (1) of the former Restriction of Special Taxation Act (amended by Act No. 4661 of Dec. 31, 1993, the term "direct farming", which is defined as the requirement for reduction or exemption of capital gains tax, was used in the law, and the expression "land cultivated by oneself" was used before the above amendment, and the Supreme Court's precedent also takes the concept of "land cultivated by oneself" as the requirement for reduction or exemption of capital gains tax (see Supreme Court Decision 94Nu1859, Feb. 3, 1995).

Since the amendment, the term "direct cultivation" has been continuously used until now, but the newly established definition provision has been amended by Presidential Decree No. 19329 on February 9, 2006, and "direct cultivation" in Article 66 (12) of the Enforcement Decree of the Restriction of Special Taxation Act means that residents are engaged in cultivating crops or growing perennial plants on their own land at all times or by cultivating or cultivating 1/2 or more of them with their own labor.

Meanwhile, according to Article 104-3 (1) 1 (a) of the former Income Tax Act and Articles 168-6 (1) and 168-8 (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21301 of Feb. 4, 2009), farmland owner is a farmland owner who does not reside in a location of farmland for a given period or does not own his/her own cultivation, and is subject to capital gains tax by applying the tax rate of 60/100 of the tax base to non-business land.

In full view of the introduction of the term "direct farming" and the developments leading up to the establishment of the definition, the provisions related to the former Income Tax Act and the legislative purpose of the provisions on reduction and exemption of capital gains tax on self-Cultivating farmland as seen earlier, "direct farming" under Article 69 (1) of the former Restriction of Special Taxation Act and "self-Cultivating" under Article 104-3 (1) 1 (a) of the former Income Tax Act shall be excluded from capital gains tax in order to recognize "direct farming" as the same concept to realize the legislative purpose to prevent the speculation of non-owned land and reduce the tax burden of self-employed farmers for not less than eight years in order to promote agriculture and rural communities.

(3) Whether the Plaintiff directly cultivated each of the instant farmland

The following facts may be acknowledged according to the respective statements in Gap evidence 1, 4, and 16 (including the number with each number), the witness KimGG's testimony and the purport of the whole arguments.

① The Plaintiff has registered as a resident in Pyeongtaek-si so far after birth. ② Each farmland in this case is located within a distance of less than three kilometers from the Plaintiff’s residence. ③ From 2005 to 2008, HH issued receipts or simplified invoices stating the details of the sale of agricultural chemicals and fertilizers to the Plaintiff. ④ From 2005 to 2008, the Plaintiff prepared a written confirmation to the effect that the Plaintiff has set up the rice harvested by the Plaintiff during the period from 2005 to 2008. ⑤ The Plaintiff prepared a letter of self-payment guarantee to the effect that the Plaintiff was directly cultivated of the farmland in this case by many neighboring residents, such as Pyeongtaek-si and the Plaintiff’s mother living in each of the farmland in this case * * If the head of Ansan-si established a letter of self-payment guarantee to the effect that the Plaintiff was a member of the agricultural cooperative from May 18, 200 to 200, the Plaintiff had been holding the farmland in this case from around 10 to 205.

However, in full view of the evidence Nos. 20, 20, 3-2, 4-1, 2, 5-5, 8-1, 2-2, and 8-2, the witness KimGG testimony, part of the witness Kim GGG testimony, the result of the plaintiff's questioning, and the purport of the whole pleadings, the following facts are also acknowledged.

① From the 1970s, the Plaintiff opened precious metals and clock retail stores with its trade name, and operated them for a period of 30 years from 9:0 to 21:00 annually. ② The Plaintiff acquired ten parcels of farmland, including each farmland in this case, on the surface of ** * from 2006 to 2007, including the farmland in this case. ③ From 117,369,000 won of the total purchase amount of zero-year allowances, the ratio of the precious metal purchase amount to 90,85,000 won is 78% of the total purchase amount. ④ While there was no agricultural machine that was reported to the domestic agricultural cooperative for supply of tax-free rice, KimGGG used documents proving that it was impossible for the Defendant to directly purchase the farmland in this case to directly purchase the farmland in the 8-month agricultural machine and to directly purchase the farmland in this case, the Plaintiff did not directly submit the content of the agricultural machine in this case to the above association.

이러한 사실에 의하면, 갑 제4 내지 13호증(각 가지번호 있는 가지번호 포함)의 각 기재 및 증인 김GG의 일부 증언을 원고의 직접 경작 증거로 선뜻 채용할 수 없고, 구 조세특례제한법 제69조 제1항에서 양도소득세 감면요건으로 '직접 경작'을 규정한 취지는 앞서 본 바와 같이 농지소유자 주도형 경작을 보호하거나 장려하기 위한 것 인 반면 쌀소득 등의 보전에 관한 법률은 논농업 자체의 보호와 농업인 등의 소득안정 이 주된 입법목적이어서 '직접 경작'을 직불금 지급요건으로 규정하고 있지 않은 이상 앞서 인정한 사실 중 원고가 이 사건 각 농지와 관련하여 직불금을 수령하여 왔다는 사실만으로는 원고가 이 사건 각 농지를 직접 경작하였음을 인정하기에 부족하다. 나 아가 앞서 인정한 사실관계에 의하면, 원고가 이 사건 각 농지에 대한 경작에 어느 정도 관여한 것은 사실이나, 한편 원고의 주업은 영수당 영업에 있었던 것으로 보이고 농작업을 상시적으로 하거나 농사를 주된 생계로 삼고 있지는 않았던 점, 원고는 약 3곳의 다른 마을에 10필지의 농지를 소유하고 있는데, $$$을 경영하면서 위 세 곳의 농사를 어떤 형태로 지어왔는지 명확히 설명되지 않는 점, 원고가 친척인 김GG의 도움을 받아 농사를 짓는 것이 농기계의 소유와 운영방식에 비추어 볼 때 위탁경영 혹은 대리경작의 형태에 가까운 것으로 보이는 점을 알 수 있고, 이러한 사정을 고려할 때 원고의 직접 경작을 인정하기 어렵고 달리 이를 인정할 증거가 없다. 따라서 원고가 이 사건 각 농지를 8년간 직접 경작하였음을 전제로 하는 원고의 위 주장은 이유 없고 이 사건 처분은 적법하다.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.