early 201J 2835 ( November 02, 2011)

It is difficult to recognize that the transferred land has been cultivated directly for not less than eight years.

In light of the fact that there is growing trees on certain land at the time of local confirmation by the tax authorities, but it was not possible to find a trace of growing crops on most land, and that neighboring residents made a statement to the effect that the land is no longer abandoned, and that they failed to submit objective data on the yield or sales details of crops, etc., the disposition that excluded the reduction or exemption on self-employed farmland is legitimate.

Article 69 of the Restriction of Special Taxation Act

2012Guhap1199 Revocation of Disposition of Imposing capital gains tax

XX Kim

Head of Ansan Tax Office

October 12, 2012

November 2, 2012

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 000 for the year 2010 against the Plaintiff on January 10, 201 is revoked.

1. Details of the disposition;

A. On November 25, 1994, the Plaintiff acquired and owned a unit of the Dong-gu, Ansan-si, 000 Y 368 m2 m2, the same 000-3 m2, the same 000-1 m2, the same 000-1 m2, the same 000-1 m2, and the same 000 m27 m2 (hereinafter collectively referred to as “each of the instant lands”). On April 12, 2010, the Plaintiff transferred each of the instant lands to Nonparty LA.

B. On May 11, 2010, the Plaintiff filed an application for reduction or exemption of capital gains tax by applying Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 10406, Dec. 27, 2010; hereinafter the same) on the ground that he/she directly cultivated each of the instant lands for at least eight years upon filing a preliminary return on the tax base of capital gains tax on each of the instant lands to the Defendant.

C. However, the Defendant denied the relevant capital gains tax reduction or exemption on the ground that the Plaintiff did not have any minor land for at least eight years as a result of the on-site verification survey, and issued a correction and notice of KRW 000 to the Plaintiff on January 10, 201 (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on November 2, 201, but was dismissed on November 2, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff owned each of the instant land from November 25, 1994 to April 12, 2010, and cultivated and cultivated indigenous trees, such as construe, salvine, salvine, shoulder, shoulder, and drilling on each of the instant lands, as well as harvested trees, salvine, relime tree, salvine, large tree, and salvine on each of the instant lands. Accordingly, each of the instant lands constitutes self-arable farmland under Article 69(1) of the former Restriction of Special Taxation Act, and thus, the instant disposition by the Defendant on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Article 69(1) of the former Restriction of Special Taxation Act provides that “The amount of tax equivalent to 100/100 of capital gains tax shall be reduced or exempted on the income accruing from the transfer of land prescribed by the Presidential Decree, among land directly cultivated by a resident prescribed by the Presidential Decree who resides in the seat of farmland for at least eight years.” Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 23590, Feb. 2, 2012) provides that “Direct farming” means that a resident is engaged in cultivating or cultivating crops or perennial plants on his/her own land at all times or with his/her own labor for at least half of the cultivation or perennial plants. The fact that the transferred farmland is “direct farming”, i.e., the transferor must actively prove that the transferred land has been used as farmland for at least eight years, and it is not presumed that the transferor has been presumed to have been a minor (see, e.g., Supreme Court Decision 190Nu6, etc.).

(2) Based on the above legal principle, as to whether the Plaintiff cultivated each of the instant land directly for at least eight years, it is difficult to believe that the respective entries and images of Gap evidence Nos. 2, Eul evidence Nos. 5-1 through Nos. 1, Eul evidence Nos. 1, Eul evidence Nos. 2 through 5 (including paper numbers), and new witnessB’s testimony are considered as a whole in light of the following circumstances, and the purport of the entire pleadings is acknowledged, and it is insufficient to recognize the Plaintiff’s self-defense by only the descriptions and images of evidence Nos. 3 and 4 (including paper numbers) are insufficient, and there is no other evidence to acknowledge them.

① Around October 2010, a tax official affiliated with the Defendant conducted on-site verification investigations on each of the instant lands. At the time, trees were planted in part of the land located in Ansan-si, the Y 000-1 located in Ansan-si, and the remainder of the land was partially planted, and there was no trace of crops cultivated or cultivated.

② At the time of the Defendant’s on-site verification, Nonparty NewB, a neighboring resident of each of the instant lands, stated that “each of the instant lands was left abandoned for a long time, and the Plaintiff did not cultivate crops.” In addition, the said newB was present in this court as a witness, and was aware of the fact that “the Plaintiff did not appear as a professional farmer, and was outside.” Upon the Plaintiff’s request for a golf practice, Nonparty NewB, a neighboring resident of each of the instant lands, stated to the effect that it was turfed with the Plaintiff that part of each of the instant lands were turfed.

③ With respect to each of the instant lands, each aerial photography taken around around 200, 2006, and 2008 (No. 2-1-3) was found to have rarely found in each of the instant lands the traces of crops cultivated and cultivated on each of the instant lands, and it appears that the miscellaneous land was cut down and actually left abandoned, unlike the surrounding farmland.

④ Although the farmland ledger under the Plaintiff’s name was first prepared on October 20, 197 with respect to each of the instant land, it is insufficient to recognize that the Plaintiff has cultivated each of the instant land solely by entering the said farmland ledger in light of the total size of the farmland recorded in the said farmland ledger and the age, occupation, etc. of household members, including the Plaintiff. Moreover, the Plaintiff did not submit objective data on agricultural crops yield or sales details on each of the instant land.

(3) Therefore, the Defendant’s disposition imposing the relevant transfer income tax on the Plaintiff is lawful on the ground that the Plaintiff failed to meet the requirements for reduction and exemption of transfer income tax on self-Cultivating farmland under Article 69(1) of the former Restriction of Special Taxation Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.