8. Whether the farmland falls under the category of self-farmland

If a person does not reside in a location of the farmland for at least eight years, he/she shall be deemed not to meet the requirements for capital gains tax exemption.

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

The plaintiff's claim is dismissed.

Litigation costs shall be borne by the plaintiff.

The defendant's rejection disposition against the plaintiff on November 27, 2003 is revoked.

1. Details of the disposition;

가. 원고는 1989. 2. 12. ◯◯◯군 ◯◯읍 ◯◯리 ◯◯◯ 전 3,223㎡(이하, 이 사건 농지라고 한다)를 취득하였다가, 2001. 4. 30. 신◯◯에게 이를 양도하고, 같은 날 실지거래가액에 의하여 양도차익을 산정하여 양도소득세 2,812,960원을 신고하였다.

B. On August 4, 2001, the Defendant notified the Plaintiff of the payment of KRW 2,812,960 as stated in the above report.

C. On May 1, 2002, the Plaintiff filed a lawsuit seeking the revocation of the above payment notice with Suwon District Court 2002Guhap1824, but this court dismissed the above payment notice on November 13, 2002 on the ground that "the above payment notice is a collection disposition for the collection of the determined tax, but cannot be deemed a taxation subject to the revocation lawsuit." The above judgment was finalized on December 14, 2004.

D. After that, on January 20, 2003, the Plaintiff filed a request for correction of the exemption from capital gains tax reported as above on the ground that the Plaintiff had voluntarily improved the instant farmland for at least eight years, which constitutes grounds for exemption from capital gains tax under Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 6762, Dec. 11, 2002; hereinafter the same shall apply). However, the Defendant rendered the instant disposition rejecting the correction on the ground that “the Plaintiff on November 27, 2003 does not meet the requirements for residence as stipulated under Article 69 of the Act, so it does not constitute exemption from capital gains tax.”

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 4, purport of whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

With respect to the defendant's assertion that the disposition of this case is legitimate in accordance with the grounds for the disposition and the relevant Acts and subordinate statutes, the plaintiff asserts that the disposition of this case is unlawful since the plaintiff took part in the farmland of this case between February 12, 1989 and April 1, 2001, the transfer income tax should be reduced because the farmland of this case constitutes the farmland of this case for not less than eight years as provided in Article 69 of the Act.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

Article 69 (1) of the Act provides that the whole amount of capital gains tax on the land which a resident prescribed by the Presidential Decree residing in a location of farmland has cultivated for not less than eight consecutive years and which is subject to agricultural income tax shall be reduced according to the transfer of farmland as part of a land farming policy, and the main owner is in order to reduce the tax burden following the transfer of farmland. Here, the term "self-arable of farmland" includes not only the case in which he has cultivated the farmland but also the case in which he has made his family living or living together with his household cultivate (see Supreme Court Decision 94Nu11859 delivered on February 3, 1995). For this purpose, it shall be cultivated by himself for not less than eight years between the time of acquiring the relevant farmland and the time of transfer thereof pursuant to Article 66 (1) and (4) of the Enforcement Decree of the Act.

이 사건으로 돌아와 먼저 원고가 이 사건 농지가 소재하는 시 · 군 · 구 및 그에 연접한 시 · 군 · 구 안의 지역에서 8년 이상 거주하였는지 여부에 관하여 살피건대, 이를 인정할 만한 아무런 증거가 없고, 오히려 을 제2호증의 기재에 의하면, 원고는 1978. 4. 24.부터 1987. 8. 26.까지 '서울 ◯◯구 ◯◯동 137-185'에 거주하였고, 1987. 8. 27.이후 현재까지는 '◯◯시 ◯◯동 243-1 ◯◯아파트 2동 505호'에 거주하고 있는 사실을 인정할 수 있고, 원고 스스로도 자녀들의 교육여건 때문에 거주지를 옮기지 못하였음을 자인하고 있으므로 원고는 위 ②항의 거주요건을 갖추지 못하였고 따라서 법 제69조 제1항 및 법 시행령 제66조 제1항, 제4항 소정의 양도소득세 면제요건을 갖추지 못하였다고 할 것이다.

3. Conclusion

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

Related Acts and subordinate statutes

former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002)

Article 69 (Abatement or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

(1) With respect to the income accruing from a transfer of the land prescribed by the Presidential Decree, which is directly cultivated by the resident prescribed by the Presidential Decree residing in the seat of the land for not less than eight consecutive years and which is subject to the agricultural income tax (including the objects of non-taxation, reduction and exemption and small collection), the tax amount equivalent to 100/100 of the transfer income tax shall be reduced or exempted: Provided, That in case where the relevant land is incorporated into a residential area, commercial area and industrial area under the Urban Planning Act (hereafter in this Article referred to as the "residential area, etc.") or a land reserved for replotting other than farmland has been designated prior to a replotting disposition under the Urban Planning Act and other Acts and subordinate statutes, the tax amount equivalent to 100

(2) Any person who intends to be subjected to paragraph (1) shall apply for tax abatement or exemption as prescribed by the Presidential Decree.

former Restriction of Special Taxation Act (amended by Presidential Decree No. 17829 of Dec. 30, 2002)

Article 66 (Abatement or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

(1) The term “resident prescribed by the Presidential Decree who resides in the seat of any farmland” in the main sentence of Article 69 (1) of the Act means a person who has cultivated while residing in the area falling under any of the following subparagraphs for not less than eight years (including the area corresponding to the relevant area at the time of commencing a cultivation, but not corresponding thereto due

1. An area in a Si/Gun/Gu (referring to an autonomous Gu; hereafter the same shall apply in this paragraph) where farmland is located;

2. An area within a Si/Gun/Gu adjacent to an area referred to in subparagraph 1.