Cho High-2016-Seoul Government-127 ( February 24, 2016)

The evidence submitted by the Plaintiff alone is insufficient to acknowledge the fact that the Plaintiff directly cultivated the instant land, and there is no other evidence to acknowledge it.

The evidence submitted by the Plaintiff alone is insufficient to recognize the fact that the Plaintiff had cultivated the instant land directly by engaging in the cultivation of crops for not less than eight years from the instant land or by cultivating not less than 1/2 of the farming work with its own labor, and there is no other evidence to acknowledge it otherwise.

Article 69 of the Restriction of Special Taxation Act for Self-Cultivating Farmland

2016Gudan54742 ( February 10, 2017)

HaO

The Director of the Pacific District Office

December 21, 2016

d February 10, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's imposition of capital gains tax of KRW 20O.O.O. for the plaintiff 20O.O., and imposition of KRW 00,000,000 and special rural development tax of KRW 0,00,000 shall be revoked.

1. Details of the disposition;

A. The Plaintiff and Maok acquired 1/2 shares of each of 1/2 shares of the OOMM (hereinafter “the land before the division”) before OO-dong O-O-O-O-O-O-use O-use land (hereinafter “the land before the division”) but O.O. the land before the division of this case was divided into 19OOOMM (hereinafter “the land before the division”) and 19OOOM(hereinafter “the land before the division of this case”) before O-O-O-O-O-O-O-use land. Although the registration of division was completed, the Plaintiff and Maok did not make a partition of co-owned property as a matter of the right to collateral security established on the land before the division of this case but did not own 1/2 shares each of 12 shares.

B. After transferring 1/2 of each of the instant lands Nos. 1 and 2 toO.O. 200, the Plaintiff filed a preliminary return on the tax base for capital gains for 20O years based on the transfer of 1/2 of each of the instant lands Nos. 1 and 2 to the Defendant, and the Plaintiff directly cultivated 1/2 of the instant lands for at least eight years, applying Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015; hereinafter the same) to the Defendant, applying Article 69(1) of the same Act.

C. The Defendant considered 1/2 shares owned by the Plaintiff among the land No. 1 of this case as the land No. 2 of this case was subject to reduction and exemption, but the land No. 2 of this case was virtually OO, and thus, the full reduction and exemption of capital gains tax on the 1/2 shares out of the land No. 2 of this case was denied, however, by applying the reduction and exemption of capital gains tax on the land, etc. subject to purchase according to the designation of a development restriction zone pursuant to Article 77-3 of the Restriction of Special Taxation Act, the Defendant issued a disposition of imposition of capital gains tax for 2000s, OO, 210 won (including additional tax O, O,839 won) and special taxation O,O,610 won (hereinafter

D. The plaintiff is dissatisfied with this and filed an appeal with the Tax Tribunal on 20O.O.O., but it was dismissed 20O.O.O.

[Ground of recognition] Facts without dispute, Gap 1, 9 evidence, Eul 1, 2, 7 evidence (including provisional number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) After acquiring the land before subdivision of this case, the Plaintiff and EO acquired the land before subdivision of this case, and EOO used the part of the land No. 2 of this case as farmland, respectively. Accordingly, the Plaintiff resided in the location of the land before subdivision of this case before subdivision of this case, and regressed the part of the land No. 1 of this case from O. 19O.O. to the time of subdivision of the land before subdivision of this case. Therefore, the transfer of 1/2 shares out of the land No. 1 and 2 of this case constitutes the transfer of self-farmland farmland under the former Restriction of Special Taxation Act, but the disposition of this case on

2) Subsequent to the division of the land before the division, the Plaintiff: (a) registered the land No. 1 and 2 of this case, which is the part cultivated by the Plaintiff, as the part cultivated by the Plaintiff in dividing the land before the division, as the Plaintiff owned by the Plaintiff; and (b) registered the land No. 1 and 2 of this case, which are the part cultivated by O as the part cultivated by O, as the part cultivated by O, as the land before the division; (c) it is merely an indication of equity in form, and the Plaintiff is merely a self-shared share even after the division of the land before the division. The Defendant recognized that the Plaintiff was a person with only 1/2 shares of the land before the division, while recognizing that the Plaintiff was a person with only 1/2 shares of the land before the division; and (d) recognized that only 1/4 shares of the land before the division was a person with only 1/2 shares of the land before the division. The instant disposition is an unlawful disposition contrary to the substance over form.

B. Determination

1) Article 69(1) of the former Restriction of Special Taxation Act provides that “The tax amount equivalent to 100/100 of capital gains tax shall be reduced or exempted on the income accruing from the transfer of land prescribed by Presidential Decree, among land cultivated directly by a resident prescribed by Presidential Decree who resides in the seat of farmland for not less than eight years, and Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26070, Feb. 3, 2015; hereinafter the same) provides that “Direct cultivation in the manner prescribed by Presidential Decree” means that a resident engages in cultivating crops or growing perennial plants on his/her own farmland at least half of the farming work with his/her own labor or cultivating or growing them with one-half or more of the farming work with his/her own labor, in light of the content and purport of the provision, the meaning of “self-owned labor” in this context should be interpreted as one-half or more of the farming work in accordance with the above provision of Article 69(13) of the former Enforcement Decree of the Restriction of Special Taxation Act.

2) From O.O. to O.O.O. 19O.O.O., the Plaintiff’s direct cultivation from the land prior to the instant subdivision for at least eight years, namely, whether the Plaintiff was engaged in cultivating crops or growing perennial plants on his own labor for at least a half of the farming work. In light of the following circumstances, the Plaintiff’s evidence alone submitted by the Plaintiff is insufficient to recognize the fact that the Plaintiff directly cultivated the instant land by engaging in growing crops for at least eight years from the instant land prior to the instant subdivision or by cultivating at least one half of the farming work. In light of the legal principles as seen earlier, the Plaintiff’s evidence is insufficient to acknowledge the fact that the Plaintiff directly cultivated the instant land by carrying out the farming work with its own labor for at least eight years, or by cultivating at least one half of the farming work.

① At the time of 19O.O.O., the Plaintiff was residing in the O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong 19O-dong O-dong O-dong O-dong O-dong 200O-dong O-dong 2000. It is difficult to view that the Plaintiff, who did not have a driver’s license when considering the means of transportation at the time, was facing the residence and the land before the division of this case. Moreover, since the Plaintiff’s husband operated the wholesale business and the real estate rental business at the O-dong O-dong O-dong 19O.O. through 19O.O. 190, it is difficult to view that the Plaintiff used the vehicle that the Plaintiff used.

② From 19O.O. to 19O.O.O.O.O.O. to 19O.O.O., the Plaintiff did not submit objective evidentiary materials that the Plaintiff was actually deaf.

③ At the time of visit and investigation by the Defendant’s public official, EO stated that, until before 19O.S. transfer, EO had been assigned to EO, the former owner of the land prior to the instant subdivision, and EO’s husband divided the land prior to the instant subdivision and thereafter, EO stated that the Plaintiff had cultivated the land prior to the instant subdivision.

3) Although the Plaintiff’s actual share of 1/2 of the land before the instant subdivision was self-sufficient, it is deemed illegal disposition that only 1/4 of the land before the instant subdivision goes against the substance over form principle. The interpretation of tax law is in accordance with the principle of no taxation without the law, barring any special circumstance, and it is not permitted to expand or analogically interpret the tax law without any reasonable reason. In particular, it is consistent with the principle of fair taxation (see, e.g., Supreme Court Decision 2003Du7392, May 28, 2004). Since Article 69(1) of the former Restriction of Special Taxation Act and Article 66(13) of the Enforcement Decree of the Restriction of Special Taxation Act provide that the Plaintiff’s share of the land before the instant subdivision is no longer than 8 years, or the Plaintiff is ordinarily engaged in cultivating crops or growing at least 1/2 of the remaining shares of the land before the instant subdivision, and thus, the Plaintiff did not own the share of 1/2 of the instant land after the Plaintiff’s actual share of 1/2 of the instant land.

3. Conclusion

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