early 2012 Heavy0180 (20 February 20, 2012)

It is difficult to recognize substitute farmland as having a direct and serious nature.

In light of the fact that the substitute farmland in the place of residence requires more than 40 minutes of the vehicle with a considerable distance, the acquisition of a number of houses and engaged in a house rental business, and the fact that the former owner of the substitute farmland submits a written confirmation that he/she continues to cultivate the substitute farmland after transferring it to the Plaintiff, it is difficult to recognize that the substitute farmland has

2012Guhap6163 Revocation of Disposition of Imposing capital gains tax

KimA

Head of Pyeongtaek Tax Office

November 16, 2012

December 14, 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 2009 against the Plaintiff on August 9, 201 is revoked.

1. Details of the disposition;

A. On January 23, 2003, the Plaintiff acquired and held OOri 000 0,792 4,792 4,896 m2 (hereinafter referred to as “previous farmland”) on the receipt of Oriri 000 m2, 9,792 m2, 2000 m2, and transferred land to the Plaintiff on January 8, 2009 due to a consultation on the acquisition of public land at Yanananananan, and purchased the land from Haan-gu, Seoan-gu, Seoan-gu, Seoan-gu, Seoul, Seoan-gu (hereinafter referred to as “alternative farmland”) on June 9, 2009, and completed the registration of ownership transfer.

B. The Plaintiff applied Article 70(1) of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter the same) to the Defendant for reduction or exemption of capital gains tax, which is a provision on reduction or exemption of capital gains tax for previous farmland.

C. However, the Defendant denied the reduction or exemption of capital gains tax on the ground of farmland substitute land on the ground that it cannot be deemed that the Plaintiff did not own substitute farmland as a result of the on-site verification survey on substitute farmland, and on August 9, 201, notified the Plaintiff of the correction and notification of KRW 000 of capital gains tax for the year 2009 (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed a request for a trial with the Tax Tribunal on February 20, 2012, but the said request was dismissed.

[Reasons for Recognition] The non-speed facts, Gap evidence 10, 16, 17 (including household numbers), and Eul evidence 1, 2, 5, and 6, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff acquired substitute farmland within one year from the date of transfer of the previous farmland and directly cultivated substitute farmland while residing in a new location for at least three years. Therefore, the instant disposition that did not recognize capital gains tax reduction or exemption is unlawful, notwithstanding the income from the transfer of previous farmland is subject to reduction or exemption of transfer income tax due to substitute farmland under Article 70(1) of the former Restriction of Special Taxation Act.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) According to Article 70(1) of the former Restriction of Special Taxation Act, Article 67(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010; hereinafter the same shall apply), and Article 67(2) and 3(1) of the former Enforcement Decree of the Restriction of Special Taxation Act, in order to be subject to reduction or exemption from capital gains tax on the substitute land for farmland, ① the previous land and newly acquired land shall be farmland, ② the former land and newly acquired land shall be directly cultivated for three or more years, and in addition, the former land shall be resided for three or more years and directly cultivated for three or more years, and ③ the former land shall be commenced within one year (two years for expropriation, etc.) and the period between the transfer date of the previous land and the acquisition date of the newly acquired land shall not be deemed 1/2 of the area of farmland and 1/3 or more of the value of the newly acquired farmland shall not be considered 9.

(2) On the basis of the above legal principle, as to whether the Plaintiff cultivated the substitute farmland directly for three years or more, it is insufficient to recognize the Plaintiff’s self-defense in light of the following circumstances, and there is no other evidence to support the Plaintiff’s self-defense, and otherwise, there is no evidence to support the Plaintiff’s self-defense with some of the entries in Gap’s 2 through 9, 11 through 15, and 18 through 21 (including paper numbers), and witness H, and Or II’s testimony with respect to whether the Plaintiff cultivated the substitute farmland for more than three years.

(A) On February 19, 2010, the Plaintiff resided in Pyeongtaek-si OO-dong 00 K leased 000 at the time of the acquisition of substitute farmland, and was on the 000 PP apartment at around eight months thereafter, he lives in the above residence until now. The distance on the road from the above residence to the substitute farmland is about 21.5 km and at least about forty minutes even if he moves to a vehicle. In addition, from April 1, 2010, the Plaintiff acquired a total of 13 bonds, including the small apartment 9 bonds, which were located in Pyeongtaek-si, while engaging in the housing rental business by using the above residence as a place of business.

(B) On May 12, 2011, a tax official belonging to the defendant had conducted on-site verification surveys on alternative farmland, and at the time, Gangnam H, the former owner of the said farmland, "A plaintiff, who was the former owner of the said farmland, has made a statement that he/she had visited once more than twice when he/she became aware of the farmer's death, and that he/she has made a statement that he/she would be able to her. In addition, on May 13, 2011, the Doha-J in this Chapter, the former location of the farmland, located in the Doha 3-gu located in the vicinity of the farmland, prepared to the tax official belonging to the defendant on May 13, 201 a written confirmation that "alternative farmland is farmland owned by Gangwon H and is transferred,

(다) 위 강HH은 이 법정에서 "대체 농지는 원래 자신의 소유였고， 위 농지에 인접 한 천안시 서북구 성환읍 OO리 000 소재 농지(이하 '인접 농지'라고 한다)는 자신의 큰형 소유로서 자신이 경작하여 왔는데， 위 각 농지 사이에는 논두렁이 없어서 모를 한꺼번에 같이 심는다. 위 각 농지의 모심기， 비료 및 농약 살포， 농작물 수확 등은 인근주민 오II이 기계를 사용하여 직접 수행하였다. 자신이 직장생활 때문에 바빠서 대체 농지를 방문하지 못하게 되면 원고가 간혹 위 농지에 왔다갔고， 벼를 심을 때와 농약을 살포할 때 가끔 거들어주었다 는 취지로 진술하였다. 그리고 인근주민 오II은 이 법정에서 10여 년 전부터 강HH으로부터 일당을 받고 모심기부터 수확에 이르기까지 대체 농지에 관한 거의 모든 농작업을 자신이 담당하여 왔다. 원고는 외지인으로서 가끔씩 대체 농지에 방문하여 자신에게 밥을 사주거나 품샀을 주었을 뿐 직접 비 료뿌리기， 모내기， 피뽑기， 농약살포 등의 농작업을 한 사실은 없다. 대체 농지의 농사 에 관한 작업 지시도 원고가 아닌 강HH으로부터 받았으며， 원고와 직접 농사에 관하 여 의논한 사실은 없다 고 진술하였다.

(D) The Plaintiff did not possess agricultural machinery that can cultivate substitute farmland, and was indirectly paid only part of the farmland purchase price thereof through HaK, and HaH. Moreover, during the period of possession of substitute farmland, it appears that the drilling and sloping of agricultural crops (hulled rice) planted in the said farmland were not the Plaintiff, but made by Ha II, and HaH. Furthermore, the Plaintiff agreed not to manage the yield of substitute farmland in 2010 separately from that of the neighboring farmland, but to receive some of the total harvest of each of the said farmland from Hah from Hah (=4,200 g) (=2,50 g) (=2,500 g). In light of these circumstances, it is reasonable to deem that the Plaintiff cultivated the said farmland on behalf of the Plaintiff, not directly cultivated the substitute farmland.

(E) Although on March 11, 1990 with respect to each of the instant land, the farmland ledger under the name of JL, the Plaintiff’s husband, was first prepared, but it is insufficient to recognize that the Plaintiff has cultivated each of the instant land by themselves in light of the number, size, and age, occupation, occupation, etc. of the household members, including the Plaintiff, of the entire farmland recorded in the said farmland ledger.

(3) Therefore, the instant disposition imposing capital gains tax on the Plaintiff is lawful, deeming that income from the transfer of the previous farmland does not fall under the reduction of and exemption from income tax under Article 70 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, and it is so decided as per Disposition.