Daejeon District Court-2014-Gu Group-100568 ( October 13, 2015)

Cho Jae-2014- Daejeon-1938 ( October 29, 2014)

The plaintiff's occupation appears to be unable to cultivate with the labor force of 1/2 of the plaintiff's occupation and it is not farmland at the time of transfer.

Since it is argued that he worked as a cleaning driver and cultivated her mother, the Plaintiff cannot be deemed to have cultivated this case's land only with the labor force, and the land situation at the time of transfer cannot be viewed as farmland because it is used as a nearby pent

Article 69 of the Restriction of Special Taxation Act: Reduction or exemption of transfer tax on self-arable farmland

Daejeon High Court 2015Nu10894 Revocation of Disposition of Imposing capital gains tax

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00. Head of tax office

October 08, 2015

November 26, 2015

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. Details of the disposition;

A. The Plaintiff acquired on January 4, 200 the same Ri 1233-1, 704 square meters prior to the same Ri 1233-5, and 396 square meters prior to the same Ri 123-5, respectively. ④ The Plaintiff acquired on January 4, 200

B. On August 26, 2011, the Plaintiff transferred the instant land in KRW 499,620,000, and reported the reduction or exemption of capital gains tax pursuant to Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 11133, Dec. 31, 201; hereinafter “former Restriction of Special Taxation Act”).

C. On September 5, 2013, the Defendant imposed a disposition of imposition of KRW 110,629,420 on the Plaintiff on the ground that “the instant land is not farmland at the time of transfer, but that the Plaintiff did not directly cultivate the instant land for at least eight years” (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 23-1 through 4, Gap evidence No. 24-1, 2, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff was born in 1960, the Plaintiff has been residing in 100 meters away from the land of this case ***. From December 21, 1990 to December 21, 1990, the Plaintiff served as a technician for cleaning a functional cleaning vehicle belonging to ***Gun**, after completing waste collection work within 05:0 to 12:00, including the instant land, with wife and mother, ** 16,321 square meters away from the instant land in one piece of farmland. The Plaintiff has been growing.

Since the acquisition of the instant land from 2006 to 2006, rice farmers were fluent water in 2006 to 2011 ( approximately 500 fluents, approximately 20 fluents, approximately 100 fluents, approximately 15 fluents, and approximately 15 fluents). In addition, from around 2008 to from 2008, the Plaintiff installed three plastic houses in the instant land *** 1230 fluents, and cultivated them by planting approximately 2,00 fluents.

The Plaintiff, at least eight years of self-defense, sold the instant land together with the ornamental water planted on August 26, 201, and thus, the instant disposition was unlawful on a different premise.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Relevant legal principles

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 any special circumstance, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it would be consistent with the principle of fair taxation with the principle of fair taxation to strictly interpret that the provision is clearly considered as a preferential provision among the requirements for reduction and exemption (see, e.g., Supreme Court Decision 2008Du11372, Aug. 20, 2009).

Article 69 (1) of the former Restriction of Special Taxation Act (amended by Presidential Decree No. 23113, Aug. 30, 201; hereinafter "Enforcement Decree of the Restriction of Special Taxation Act") provides that "direct cultivation" in Article 66 (13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 23113, Aug. 30, 201; hereinafter "Enforcement Decree of the Restriction of Special Taxation Act") means that "a resident is engaged in cultivating or cultivating crops or perennial plants on his/her own land, or who cultivates or cultivates 1/2 or more of them with his/her own labor by cultivating or cultivating them with his/her own labor, among land cultivated directly by a resident prescribed by Presidential Decree for at least eight years." Thus, it shall be deemed that the above provision is interpreted as a case where the resident satisfies the requirements for self-help or growing of 1/2 or more of his/her own work in his/her own land, and it shall not be deemed that he/she is responsible for the farmer or his/her family member with his/her own labor or any other family.

The fact that a transferor directly cultivates the transferred land under the above provision is obliged to prove the fact that he/she directly cultivated the transferred land under the above provision (see, e.g., Supreme Court Decision 90Nu639, May 22, 1990). In such cases, as long as he/she directly engages in farming, even if he/she concurrently engages in another occupation, it constitutes a self-defense. However, it cannot be deemed that it is merely an indirect operation with the focus on other occupation (see, e.g., Supreme Court Decision 2002Du8444, Oct. 11, 2002).

(2) In the instant case:

(A) We examine whether the Plaintiff is constantly engaged in the cultivation of crops or the growing of perennial plants on the instant land, which is farmland for not less than eight years, or whether not less than 1/2 of the farming work was cultivated or cultivated with the Plaintiff’s labor force.

(B) First of all, the Plaintiff’s 2, 4 through 8, 13 through 21, 29, 32 through 35 (including each number), Eul’s witness testimony 6, 100 and 200 won of 2,00 won of 2,000 won of 20,000 won of 20,000 won of 20,000 won of 20,000 won of 20,000 won of 20,000 won of 20,000 won of 20,000 won of 20,000 won of 20,000 won of 6,000 won of 2,000 won of 2,000 won of 6,00 won of 20,000 won of 7,000 won of 20,000 won of 2,00 won of 2,00 won of 2,00

(C) However, in light of the following circumstances acknowledged by Gap evidence Nos. 3 and Eul evidence Nos. 4, 6, and 15, and by the purport of the testimony and the whole pleadings of Lee O-O witness of the first instance trial, the evidence submitted by the plaintiff is difficult to believe it as it is or it is insufficient to recognize the facts of self-defense for not less than eight years, and there is no other evidence to prove it otherwise.

① From December 21, 1990 to **Gun*, the Plaintiff served as a inorganic contract street cleaners (functional Grade 7 local driving place), from July 1, 2004 to * in the army* where 1235-3, the Plaintiff also owns farmland of 16,321 square meters of nine parcels, including the instant land, in ** * military** * in the case of military* *25-3 in the case of the Plaintiff. Accordingly, it is difficult to believe that the Plaintiff cultivated the instant land using his own labor force. Moreover, even if the Plaintiff’s wife and her mother were cultivated together, as alleged by the Plaintiff, this is not included in the Plaintiff’s labor force.

② In light of the fact that the purpose of the Rice Income Preservation Act is to protect rice itself and stabilize the income of farmers, and the direct cultivation is not the requirements for direct payments compensating for rice income, etc., and that the direct payments compensating for rice income, etc. are subject to direct payments compensating for rice income, etc. after transferring the instant land on August 26, 2011, the Plaintiff cannot be presumed to have cultivated the instant land directly on the sole basis of the fact that the direct payments compensating for rice income, etc. compensating for the Plaintiff in 2005 and 2006 relating to the instant land was paid to the Plaintiff in 202 to 2004. Furthermore, the recipient of direct payments compensating for rice income, etc. compensating for rice income, etc. related to the instant land is not the Plaintiff, but the Plaintiff’s Maooo.

In addition, it is not enough to prove that the certificate of registration of agricultural and fishery business entities or the certificate of association member directly cultivated the farmland.

③ In addition to the instant land, it is difficult to readily conclude that the Plaintiff owned farmland, other than the instant land, and used the fertilizer, material cost, and the purchase price of ornamental trees, etc. for the purpose of cultivating the instant land.

④ According to Article 168-8 (Scope, etc. of Farmland) of the Enforcement Decree of the Income Tax Act, the term “farmland” means the paddy field, paddy field and orchard, which is the land actually used for cultivation regardless of the land category on the public cadastral book. The Plaintiff acquired the instant land on January 4, 200 and December 20, 201, and transferred it on August 26, 201. At the time of transfer, the Plaintiff was growing trees on the instant land, and the land was growing down on the military base, and was used on the road and vacant lot, etc. At the time of the first investigation on the current status of the instant land (to telephone conversations around July 2013). The OO of the Ssium adjacent to the instant land was cut down the instant land from the set of cryp to the instant land, and made a statement on the instant land using the instant plants as the cryp or the instant plants to view customers as the cryp for four to five years.

Taking account of the fact that OO leased and used the land of this case without rent, and that there is no content about the sale of landscape trees in the sales contract on the land of this case, it is difficult to view that the land of this case was self-fluored farmland for not less than eight years as the land that was leased to snuri botanical gardens, etc., which was for landscaping, was transferred.

(3) Sub-decisions

Therefore, the instant disposition is lawful, and the Plaintiff’s assertion seeking the revocation of the instant disposition on a different premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

November 26, 2015