Cho Jae-2016-China-2754 ( October 26, 2016)

It is difficult to deem that the instant land was directly cultivated for not less than eight years.

It is difficult to recognize that the Plaintiff directly cultivated the instant land for not less than eight years.

Article 69 of the Restriction of Special Taxation Act (Abatement or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

2017Gudan101 Revocation of Disposition of Imposing capital gains tax

OO

O Head of tax office

2017.08.09

2017.08.30

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 the capital gains tax for the year 200O on the Plaintiff shall be revoked.

1. Details of the disposition;

A. The Plaintiff acquired and owned 200O.O.O.O.O.O.O.O.O.O.O.O. also reported after the deadline for capital gains tax by applying the reduction of capital gains tax and the special deduction for long-term holding, on the ground that the Plaintiff: (a) transferred the instant land to 200O.O.O.O.; and (b) transferred the said land to 200O.O.O.O.O.; and (c) the Defendant’s self-defluence of the instant land for at least eight years.

B. The Defendant: (a) deemed that it is impossible for the Plaintiff to always cultivate 1/2 or more of the annual gross pay of KRW 50 million by inserting his own labor on the instant land as a public official (hereinafter “public official”); and (b) denied the special long-term holding deduction and application for reduction and exemption by denying the special long-term holding deduction and application for reduction and exemption; and (c) imposed an OO of capital gains tax (including additional tax) on the Plaintiff in 2000.O.O. after prior notice of taxation and pre-assessment review (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal, but was dismissed 200O.O.O.O.

(Reasons for recognition) No dispute exists, entry in Gap 13, 14, and Eul 1 through 3 (including paper numbers), the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

From the point of view, the Plaintiff: (a) was a farming shed in the vicinity of the instant land; (b) was cultivated spawn and sublime in the orchard owned by AAAAA Agricultural High School; (c) was graduated from the department of agriculture in the field of agriculture in the military; (d) continued cultivating orchard using leave to the military service; and (e) continued cultivating spawns, etc., even after being appointed as a public official; and (e) continued cultivating spawns, etc. by using a certificate of self-issuance, an agricultural business entity registration, and a farmland ledger, etc., even after being appointed as a public official. The Plaintiff purchased the instant land sold to Nonparty CCC again, and directly cultivated spawn oil, etc. at the same time until it is sold to a third party through a voluntary auction; (c) the Plaintiff completed the agricultural administrative process and obtained a certificate of qualification of landscaping technician, etc.; and (d) the Plaintiff’s ownership and storage storage of agricultural machinery, etc.; and (c) the area of the instant land is not so big and necessary, the Plaintiff’s disposition should be revoked.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) Article 69 of the former Restriction of Special Taxation Act (Amended by Act No. 13560, Dec. 15, 2015)

According to Paragraph (1) of this Article and Article 66 (1) and (13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26070 of Feb. 3, 2015), in order to obtain reduction of or exemption from capital gains tax, a person must directly cultivate the relevant farmland while residing in a Si/Gun/Gu where the relevant farmland is located, a Si/Gun/Gu located adjacent to the relevant farmland, or an area within 20km from the relevant farmland, or within the 20km straight line from the relevant farmland. In such cases, “direct cultivation” means that a resident engages in cultivating or growing crops or growing perennial plants on his/her own land at least 1/2 of his/her own labor. The meaning of “1/2 or more self labor force” in this context shall be interpreted as meaning as gram (see, e.g., Supreme Court Decision 2012Du19700, Dec. 27, 2012).

2) In light of the above legal principles as to whether the Plaintiff cultivated the instant land directly for at least eight years, comprehensively taking account of the following facts and circumstances acknowledged by the respective entries and the entire purport of the pleadings, including the following: (a) it is insufficient to acknowledge that the Plaintiff directly cultivated the instant land for at least eight years; and (b) there is no evidence to acknowledge otherwise.

- Article 69 of the Restriction of Special Taxation Act is reasonable to interpret the language and text in that it is intended to protect the farmers by lowering the tax burden and promote the development and encouragement of agriculture with respect to the land which is cultivated directly by the resident of the farmland for not less than eight years, but it may be abused as a means of tax evasion.

- The details of wage and salary income (total wage) received by the Plaintiff while serving as an agricultural assistant in the Korea Agriculture Office during the retention period of the instant land are as listed below. It seems that it is not easy and easy to directly cultivate the instant land during the said period by the Plaintiff, who received a considerable amount of wages as a public official in career service of a local government.

- According to the farmland ledger (A) submitted by the Plaintiff, among the total 7,299 square meters of land owned by the Plaintiff, the total 11 square meters of 12 square meters of land, including the instant land, shall be limited to 5,973 square meters of 11 square meters of 7,299 square meters of land owned by the Plaintiff. The main crops are rice, rice, dried, and vegetables, etc. indicated. In light of the Plaintiff’s status and position as a public official of the DDR, who was a public official of the DDR, the Plaintiff directly cultivated various crops, including rice pens, etc. from the above large area of farmland, is difficult to believe in light of the empirical rule.

- The Plaintiff’s written confirmation of the fact of cultivation (A) submitted by the Plaintiff is merely a document confirming the Plaintiff’s cultivation from the Plaintiff himself/herself and his/her pro-friendly EEE, village relocation, etc. to abstractly confirm the Plaintiff’s cultivation, and it is difficult to believe its content as it is, or it is difficult to believe its content as it is, for not less than eight years. The details of sales revenue by each trader submitted by the Plaintiff (A 5) are insufficient to prove the Plaintiff’s own cultivation in light of the amount of purchase and items of purchase.

- Other evidence, such as the certificate of registration of agricultural business entities, the application for issuance of self-certification certificate, etc. submitted by the Plaintiff, and the record of sales of pine tree seedlings and tree oil produced by the preparing person presumed to be the Plaintiff, the present status of agricultural machinery, and the fact confirmation prepared by GG alone, are insufficient as evidence to prove the Plaintiff’s self-defense for not less than eight

3) Therefore, the Plaintiff’s assertion cannot be accepted, and the instant disposition is lawful.

3. Conclusion

The plaintiff's claim is dismissed. It is so decided as per Disposition.