Whether or not there was a self-defense for 8 years

There is no evidence to recognize that direct self-sufficiency has been made for not less than 8 years, and it does not constitute capital gains tax reduction

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

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 50,634,190 against the Plaintiff on April 1, 2006 shall be revoked.

1. Details of the disposition;

A. On January 7, 1989, the Plaintiff acquired and owned ○○○○○○○○-dong, ○○○○○○-dong, ○○○○○○, 1,814 square meters (hereinafter “instant land”). On August 9, 2005, around August 9, 2005, the Plaintiff sold KRW 270,000 to ○○○-dong, ○○○.

B. In filing a preliminary return of capital gains tax on the said transfer, the Plaintiff reported that the instant land constitutes self-arable farmland under Article 69(1) of the Restriction of Special Taxation Act and Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329, Feb. 9, 2006; hereinafter the same), and thus, constitutes a case where the amount of tax equivalent to 100/100 of capital gains tax is reduced or exempted. However, on April 1, 2006, the Defendant rendered the instant disposition that decided and notified 50,634,190 won as capital gains tax for the year 2005 on the ground that the Plaintiff cannot be deemed to have cultivated the instant land directly for at least eight years.

[Reasons for Recognition] Gap evidence Nos. 1, 2, Eul evidence No. 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

After acquiring the instant land, the Plaintiff directly cultivated the instant land for not less than eight years, including directly cultivating the instant land with the help of ○○○, which is the father residing together with the instant land. Even if the Plaintiff did not directly cultivate the instant land, since the Plaintiff’s wife, etc. cultivated the instant land under the Plaintiff’s responsibility and calculation, it should be deemed as subject to reduction and exemption of capital gains tax as it constitutes self-arable farmland. However, the instant disposition otherwise deemed unlawful

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

Article 69(1) of the Restriction of Special Taxation Act, which applies to the transfer of the instant land, provides that in case where a resident prescribed by the Presidential Decree who resides in the location of the instant land has cultivated “directly for not less than eight years,” the tax amount equivalent to 100/100 of capital gains tax on the income accruing from such transfer shall be reduced or exempted. Thus, in order to determine that the transfer of the instant land is subject to reduction or exemption, the Plaintiff directly cultivated the instant

However, considering the following facts: (a) as evidence that the Plaintiff had directly cultivated the instant land for not less than 8 years with the help of ○○○○○○○○○○○○○○ after acquiring the instant land; (b) as evidence, evidence Nos. 3, 7-1 through 4, 8, 9-1, 10, 11-1, 11-4; and (c) evidence Nos. 6-1, 2, 3, 1-1, 1-2, 2, 3-2, 1-3, and 9-1, the Plaintiff’s assertion that the Plaintiff had actually sold the instant land to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ by directly cultivating the instant land with the help of ○○○○○○○○○○○○○○, the Plaintiff’s remaining place of residence from 199,79.198.

Meanwhile, even if the plaintiff did not directly cultivate the land of this case, it should be deemed that the plaintiff cultivated the land of this case under the responsibility and calculation of the plaintiff. However, Article 69 (1) of the Restriction of Special Taxation Act (amended by Act No. 4661 of Dec. 31, 1993; hereinafter the same shall apply), which is the previous provision on reduction or exemption, does not stipulate "direct cultivation" as its requirement, while it does not stipulate "direct cultivation" as the requirement of reduction or exemption, and Article 66 (12) of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329 of Feb. 9, 2006) provides that "resident is ordinarily engaged in the cultivation of crops or the growing of perennial plants in his own farmland, or who does not own 1/2 or more of his own farmland through his own cultivation or its own own own own farming." Thus, it is not reasonable to deem that the plaintiff's owner is not obligated to use the farmland of this case.

Therefore, the instant disposition based on the premise that the transfer of the instant land does not constitute the subject of reduction or exemption of capital gains tax is lawful.

3. Conclusion

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

Relevant statutes

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

(1) With respect to the income accruing from a transfer of the land prescribed by the Presidential Decree among the land which is subject to the agricultural income tax (including those subject to non-taxation, reduction and exemption and small collection), 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 (not less than eight years) by such resident, the tax amount equivalent to 100/100

○ [The former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329 of Feb. 9, 2006)] Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19

(1) For the purpose of the main sentence of Article 69 (1) of the Act, the term “resident prescribed by the Presidential Decree who resides in the seat of the farmland” means a person who has cultivated while living in the area (including the area corresponding to the relevant area at the time of commencement of cultivation, but does not fall under it due to reorganization of administrative district) falling under any of the following subparagraphs for not less than 8 years (in case of transfer of the farmland to the Korea Agricultural and Rural Infrastructure Corporation under the Korea Agricultural and Rural Infrastructure Corporation and Farmland Management Fund Act (hereafter in this Article, referred to as the “Korea Agricultural and Rural Infrastructure Corporation”) or to the corporation under paragraph (2), 5 years;

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.

(4) For the purpose of the text of Article 69 (1) of the Act, the term “land as prescribed by the Presidential Decree” means the farmland, which is subject to the payment of management transfer subsidy under paragraph (3), cultivated by himself for not less than 8 years (in case of transfer to the Korea Agricultural and Rural Infrastructure Corporation or the corporation under paragraph (2), 5 years; in case of transfer to the Korea Agricultural and Rural Infrastructure Corporation or the corporation under paragraph (2), 3 years) from the time of acquisition until the time of transfer, excluding that falling under any of the following subparagraphs. In this case, in calculating the period of farming inherited farmland

1. Farmland located in a Special Metropolitan City, Metropolitan City (excluding Guns located in Metropolitan Cities), or Si (excluding Eup/Myeon areas in a Si in the urban and rural complex form established under the provisions of Article 3 (4) of the Local Autonomy Act) as of the date of transfer, for which three years have passed since the date of incorporation into a residential, commercial, and industrial area under the National Land Planning and Utilization Act: Provided, That farmland incorporated into a residential, commercial, or industrial area under the National Land Planning and Utilization Act as a result of the implementation of a development project in a large-scale development project area (referring to a single project execution area, the authorization of project approval of which is identical) falling under any of the following items, and for which three years have passed since the date of incorporation into such area due to the implementation

(a) An area with at least 1,00 landowners within the project execution area;

(b) Area where the project area is larger than that prescribed by Ordinance of the Ministry of Finance and Economy;

2. Where any land other than farmland has been designated prior to the date of a replotting disposition, the farmland for which three years have elapsed from the date of such designation.

(5) Farmland subject to the provisions of paragraph (4) shall be based on the farmland as of the date of transfer under the provisions of Article 162 of the Enforcement Decree of the Income Tax Act.

○ [Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329, Feb. 9, 2006)] Article 66 (Reduction or Exemption of Transfer Income Tax on Self-Cultivating Farmland)

(12) The term "direct cultivation" in Article 69 (1) of the Act means that a resident is engaged in cultivating crops or growing perennial plants on his own farmland at all times or carrying out at least half of farming works for cultivating or growing them with his own labor.

The Addenda No. 19329, Feb. 9, 2006>

The amended provisions of Article 10 (Application to Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland) Article 66 (11) and (12) shall apply to the portion transferred after this Decree enters into force.

The income tax shall not be levied on the following incomes under Article 5 (Non-Taxable Income) of the former Income Tax Act (amended by Act No. 4661 of December 31, 1993):

6. Capital gains:

(d) Income accruing from the transfer of land, prescribed by the Presidential Decree, which has been cultivated by himself for not less than eight consecutive years until the transfer, and is subject to the farmland tax (including the cases of non-taxation, reduction and exemption, and small collection).