Whether it is subject to reduction or exemption of capital gains tax for 8 years or longer;

The plaintiff did not recognize the fact of self-sufficiency in the land of this case for more than 8 years, and it cannot be deemed that the land of this case constitutes farmland at the time of transfer.

조세특례제한법 제69조자경농지에 대한 양도™"그세의 감면

2016Gudan9460 Revocation of Disposition of Revocation of Capital Gains Tax Correction

김〇〇

〇〇세무서장

July 5, 2017

August 9, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 64,81,710 for the Plaintiff on March 3, 2016 shall be revoked.

1. Details of the disposition;

가. 원고는 1993. 5. 13. 〇〇시 〇〇동 197-20 전 200㎡(이하, 이 사건 제1토지'라고 한다)를 상속으로 취득하고, 2001. 7. 31. 같은 동 206-7 도로 46㎡ 중 1/2 지분(이하 '이 사건 제2토지'라고 하고, 위 제1토지와 합하여 '이 사건 토지'라고 한다)을 매매로 각 취득한 후 2014. 10. 17. 소외 장AA에게 위 토지 모두를 양도하였다.

B. The Plaintiff applied for reduction or exemption of capital gains tax to the Defendant pursuant to Article 69(1) of the former Restriction of Special Taxation Act on the ground that the Plaintiff used the instant land as farmland for at least eight years. The Defendant deemed that the instant land was not farmland as of the date of transfer and was not cultivated directly by the Plaintiff, and excluded from the application of the reduction or exemption of capital gains tax and the special deduction for long-term holding of farmland, thereby notifying the Plaintiff of KRW 64,81,710 for capital gains tax for the year 2014 (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on April 6, 2016, but was dismissed on September 21, 2016.

[Reasons for Recognition] Each entry in Gap 1, 2, and Eul 1 through 4 (including virtual numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, while operating a gas station, including the cultivation period of decedent KimB, was directly cultivated in the instant land located immediately next to the Plaintiff for not less than eight years. The land constitutes farmland directly cultivated by the Plaintiff until it was transferred around October 2014, and thus, the transfer income tax should be reduced or exempted pursuant to Article 69(1) of the former Restriction of Special Taxation Act in cases of the Plaintiff.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) Relevant legal principles

According to Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015; hereinafter the same) and Article 66(1) and (13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26070, Feb. 3, 2015; hereinafter the same shall apply), a resident shall directly cultivate the relevant farmland while residing in a Si/Gun/Gu where the relevant farmland is located for at least eight years, a Si/Gun/Gu adjacent to the relevant farmland, or an area within 20km in straight line from the relevant farmland. "Direct cultivation" in this case means that a resident is constantly engaged in cultivating or cultivating crops or perennial plants on his/her own land, or cultivating or cultivating 1/2 or more of farming work with his/her own labor (see, e.g., Supreme Court Decision 200Du14827, Dec. 27, 2012).

Meanwhile, according to the provisions of Article 66 (5) of the Enforcement Decree of the Restriction of Special Taxation Act and Article 27 (1) and (2) 2 of the Enforcement Rule of the Restriction of Special Taxation Act, land subject to reduction or exemption of self-Cultivating shall be farmland as of the date of transfer, and such farmland means land actually used for cultivation regardless of its land category in the public cadastral book as a whole and answer. Furthermore, the burden of proving that land subject to reduction or exemption of capital gains tax is "farmland" and "self-arable land" is the taxpayer who claims reduction

2) Whether the plaintiff was self-employed for at least eight years

In full view of the following facts and circumstances, as to whether the Plaintiff cultivated the instant land for at least eight years in accordance with the aforementioned legal doctrine, together with the provisions of the relevant laws and regulations as seen earlier and the evidence revealed earlier, it is insufficient to recognize that the Plaintiff directly cultivated the instant land for at least eight years, and there is no other evidence to acknowledge otherwise.

○ Article 69 of the former Restriction of Special Taxation Act is reasonable to strictly interpret the language and text in that Article 69 of the former Restriction of Special Taxation Act is to protect the farmers by reducing the tax burden and to promote the development and encouragement of agriculture, while it can be abused as a means of tax evasion.

○ 원고는 1995. 4. 19.경부터 이 사건 토지를 양도할 때까지 인근의 〇〇시 〇〇동 197-3 외 3필지에서 'CC주유소'(이하 '이 사건 주유소'라고 한다)를 운영하였는데, 그 기간 중의 총 수입금액 및 사업소득금액은 아래 표의 기재와 같다. 구 조세특례제한법 시행령 제66조 제14항에 의하면 거주자의 사업소득금액의 합계액이 3,700만 원 이상인 과세기간이 있는 경우 그 기간은 피상속인 또는 거주자가 경작한 기간에서 제외하도록 규정하고 있는바, 원고의 경우 1995년도를 제외한 1996년도부터 2014년도까지의 사업소득금액의 합계액이 모두 3,700만 원을 초과하는 이상 위 기간을 경작기간에서 제외하면 이 사건 토지 보유기간의 대부분이 경작기간으로 인정되지 아니하여(1993년 혹은 2001년도부터 2014년도까지 중 1995년도부터 2014년도까지의 기간 제외) 8년 이상 자경요건을 갖추지 못하게 된다.

○ Even if the provision of the above Enforcement Decree does not apply to the Plaintiff, it appears that it would not be easy and easy to directly cultivate the land of this case during the above period that the Plaintiff acquired high sales and business income as the operator of a gas station (see Supreme Court Decision 2012Du7899, Oct. 25, 2012). Some of the farming materials purchase details submitted by the Plaintiff or a simple receipt receipt submitted by the Plaintiff do not directly prove the fact of cultivation in the instant land, and the entry in the fact confirmation or letter of personal guarantee is merely an abstract confirmation of the Plaintiff’s cultivation. In light of the fact confirmation or letter of personal guarantee, the above evidence submitted by the Plaintiff is insufficient or believed to prove the Plaintiff’s cultivation for at least eight years.

3) Whether the land of this case was farmland

As above, although the Plaintiff’s failure to recognize a self-defensive fact for at least eight years on the instant land, the reduction or exemption of self-defensive tax under Article 69(1) of the former Restriction of Special Taxation Act is not immediately applicable, it shall be deemed as preliminary determination whether the instant land

The following circumstances, which are acknowledged by the evidence and the purport of the entire pleadings, are the land of this case, the land of this case is located between the walls and packaging roads of the gas station of this case operated by the plaintiff, and it is unclear whether dry field crops are actually planted at the place around August 2014, which is the time of the transfer. The land of this case was classified on the road at the time of transfer, and the Defendant’s investigating official confirmed that the land was used as a road through aerial photography or instruction, and the land of this case was part of the road. In full view of the following circumstances, the land of this case was assessed comprehensively from the year 2007 to the year 2014, and from the year 205 to the year 2008 to the year 2008, the land of this case was not actually used for the farmland of this case, and there is no evidence to acknowledge that the land of this case was used for the farmland of this case at the time of transfer.

4) Sub-committee

After all, the plaintiff's argument cannot be accepted, and the defendant's disposition of this case is legitimate.

3. Conclusion

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