Daejeon District Court 2012Guhap814 ( October 23, 2013)

Cho High 201 Jeon 3077 ( November 17, 2011)

It is not recognized that he/she is engaged in the farming work of planting and managing trees or has cultivated them with his/her own labor at least 1/2.

Since it is difficult to see that a large number of landscaped trees on land used in the management of various businesses, such as a construction company, were engaged in the farming industry or carried out at least 1/2 of the farming industry with its own labor, and there is no objective supporting materials to recognize this, the disposition excluded from reduction or exemption on the ground that the disposition excluded from reduction

2013Nu329 Revocation of disposition to impose capital gains tax

AA

The Director of the National Tax Service

Daejeon District Court Decision 2012Guhap814 Decided January 23, 2013

August 13, 2013

September 12, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of the capital gains tax on February 8, 201 by the Defendant and the special rural development tax on the Plaintiff shall be revoked.

1. Details of the disposition;

(a) Acquisition and transfer of land;

"원고는 1999. 11. 4. OO시 OO구 OO동 265-1 전 2，750㎡， 같은 동 265-4 전 1，81O㎡중 각 1/2 지분(이하 '이 사건 토지'라고 한다)의 소유권을 취득하였는데， 이 사건 토지는 2009. 3. 24. 한국토지주택공사에 수용되었다.",나. 양도소득세 부과처분

On May 28, 2010, the Plaintiff asserted that the instant land was self-sufficient for not less than eight years, while filing a report of confirmation of capital gains tax, and applied for reduction or exemption of capital gains tax.

However, the Defendant conducted an on-site investigation on the instant land around December 2010 and determined that it was not subject to reduction or exemption of capital gains tax on the ground that the receipt of trees difficult to be considered as crops subject to agricultural income tax is old trees, etc., and thus it is difficult to be considered as farmland.

Accordingly, on February 8, 2011, the defendant applied only reduction due to expropriation of public land, and imposed a disposition of imposition of capital gains tax on the land in this case and OOOOO of the special rural development tax on the plaintiff (hereinafter referred to as the "disposition in this case").

(c) In the case of a previous trial procedure:

On August 24, 2011, the plaintiff filed a request with the Tax Tribunal, while the Tax Tribunal dismissed the plaintiff's request on November 17, 201.

[Ground of recognition] The facts without dispute, Gap evidence 1, Eul evidence 1 through 4, and evidence 8 (if there are natural disasters, including the number, hereinafter the same shall apply), and the purport of the whole pleadings.

2. Whether a disposition is lawful

A. The parties' assertion

(1) Summary of the Plaintiff’s assertion

Since the Plaintiff acquired the instant land on November 4, 199, until it was expropriated in the Korea Land and Housing Corporation on March 24, 2009, the Plaintiff cultivated the instant land by planting and managing landscaping trees, etc. for nine years and four months. In addition, among seedlings and OO owners of landscape trees subject to compensation stated in the compensation statement of the Korea Land and Housing Corporation, the Defendant dismissed the application for reduction of or exemption from capital gains tax, and as such, the instant land constitutes “farmland cultivated directly for eight years or more” and the instant disposition on a different premise should be revoked as it is unlawful.

(2) Summary of the defendant's assertion

In light of the type and receipt of landscape trees planted at the time of the transfer of the instant land, it is difficult to regard the present state of the instant land as farmland. Moreover, it is not recognized that the Plaintiff directly cultivated the instant land for not less than eight years. As such, the instant land is not subject to reduction and exemption of capital gains tax, and the instant disposition is lawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Relevant legal principles

Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 921, Jan. 1, 2010) provides that the tax amount equivalent to 100/100 of the transfer income tax shall be reduced on the income accruing from the transfer of land prescribed by the Presidential Decree among the land which is subject to agricultural income tax, which is cultivated directly by the resident prescribed by the Presidential Decree residing in the location of such land for not less than eight years

In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws is to be interpreted in accordance with the text of the law, barring any special circumstance, and it is not allowed to expand or analogically interpret it without any reasonable reason, and, in particular, it accords with the principle of fair taxation to strictly interpret that the provision is clearly preferential in terms of the requirements for tax exemption or exemption (see, e.g., Supreme Court Decision 2003Du7392, May 28, 2004). Moreover, the fact that the requirements for tax exemption or exemption are satisfied is the burden of proving that the claimant bears the burden (see, e.g., Supreme Court Decision 92Nu1893, Jul. 13,

(2) Whether the Plaintiff directly cultivated the instant land

Article 66 (13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037 of Feb. 18, 2010) provides that "Direct farming" in Article 69 (1) of the Act means that a resident is engaged in cultivating crops or growing perennial plants on his/her own land at all times or in cultivating or growing them with his/her own labor."

In full view of the following circumstances, it is difficult to recognize that the Plaintiff is engaged in the farming work of planting and managing trees on the land in this case at least one half of the farming work of planting and managing them, or cultivating them with its own labor, by taking into account the following circumstances in which the Plaintiff may be recognized by adding the entire purport of the pleading to the descriptions and images of Gap 1, 3, 6, 7, 10, and 10 to 31, and 31.

From November 19, 199 to BB, the Plaintiff engaged in wholesale and retail business (e.g., seed planting facilities and sale) by 00 won until 2008, and from April 13, 2001, engaged in wholesale and retail business (e.g., landscape tree sales) while operating theCC Construction Co., Ltd., OOO personnel by 2009, and from August 1, 2006, OOO personnel was engaged in construction (scling and landscaping) business while operating theCC.

On the other hand, on the land of this case, trees were planted at the time of expropriation, such as single-fung tree, sules, sules, sules, sules, sules, sules, and yellow (in the case of pine trees, at least 25 years at least 25 years in receipt, and most other trees have been received for at least 250 years, and most other trees have been received for more than 20 years in most cases), and it is difficult to believe that the Plaintiff is engaged in the farming work of planting and managing a large number of landscape trees on the land of this case at all times in the course of the Plaintiff’s management of the above enterprises, or carried out at least 1/2 of the above farming work at its own labor, in light of the empirical rule.

In addition, the plaintiff asserts that he purchased trees and planted them on the land of this case, and that he managed trees by purchasing farming materials, and according to the evidence Nos. 6, and evidence Nos. 31-1 of Eul, it is only recognized that the plaintiff purchased trees from the EEF, FFFFF, and GG arboretums, and that the farming materials that the plaintiff purchased from GGGG companies are supplied by the above company are also recognized.

As can be seen, the data submitted by the Plaintiff asserting that it was an objective material to know that the Plaintiff had planted and managed trees in the instant land was merely a fact that the Plaintiff had cultivated the instant land in the name ofCC Construction Co., Ltd., rather than the Plaintiff, and thus, it is insufficient to recognize that the Plaintiff directly cultivated the instant land. On the other hand, the Plaintiff did not submit objective evidence to prove that the Plaintiff directly planted and managed trees in the instant land.

Furthermore, it is insufficient to recognize that the Plaintiff directly cultivated the instant land only with the descriptions and images of Gap's 4, 5, 11, 18, and 19 that the Plaintiff cultivated the instant land or the Plaintiff directly purchased agricultural materials, and with the descriptions and images of Gap's 3, 8, 9, 12, and 13, in light of the aforementioned circumstances.

(3) Sub-determination

Therefore, the disposition of this case under the premise that the land of this case is not subject to reduction or exemption of capital gains tax is lawful, and the plaintiff's above assertion is without merit.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed due to its reason, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without reason, and it is so decided as per Disposition.