early 208 Heavy2769 (2009.04.07)

Capital gains tax reduction or exemption for farmland substitute land;

With respect to the reduction or exemption of capital gains tax on substitute land for farmland, the fact that he/she has resided in substitute farmland within one year from the date of transfer of the previous land shall not be recognized.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing capital gains tax of KRW 26,650,000 on the Plaintiff on May 1, 2008 is revoked.

1. Circumstances of the disposition;

A. On June 28, 197, the Plaintiff acquired 1,051 square meters prior to 124-6, Jung-gu, Incheon Metropolitan City, and 1,643 square meters prior to 128-7, and the same 1,643 square meters prior to 128-7, and transferred each of the previous farmland to the Korea Land Corporation on December 27, 2006, and on December 5, 2007, the Defendant imposed an imposition of KRW 26,650,000 on the Plaintiff for the transfer of each of the previous farmland in this case.

나. 원고는 2007. 12. 24. 인천 강화군 내가면 ★★리 222 전 684㎡, 같은 리 223 전 602㎡, 같은 리 209 임야 344㎡(이하 '이 사건 각 대토농지'라 한다)를 취득한 다음, 2008. 2. 19. 피고에게 이 사건 각 종전 농지의 양도로 인한 소득에 대하여 농지 대토의 요건을 충족하였다는 이유로 양도소득세의 감면을 구하는 양도소득세 경정청구를 하였고, 이에 대하여 피고는 2009. 5. 1. 원고가 이 사건 각 종전 농지의 양도일로부터 1년이 지난 2008. 4. 30.까지도 이 사건 각 대토농지에 거주이전을 하지 아니하였으므로 농지 대토 감면의 요건에 해당하지 않는다는 이유로 원고의 위 경정청구를 거부하는 내용의 이 사건 처분을 하였다.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 1, 2 and 3, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's principal

(1) Within one year from the date of transfer of each of the previous farmland in this case, residing in each of the instant substitute farmland does not constitute a reduction or exemption requirement.

(2) Even if the Plaintiff’s residence within one year from the date of transfer of each of the previous farmland in this case was a reduction or exemption requirement, the Plaintiff made a moving-in report to ○○○ 98-2 on May 6, 2008, which was in fact residing in the above-mentioned place around November 2007, and even if the Plaintiff’s residence was the Plaintiff’s residence on December 8, 2003, Jung-gu, Incheon, Jung-gu, Incheon, Dong-dong 831-13, Jung-gu, Jung-gu, Incheon, Seoul, as it constitutes an area within the Si/Gun/Gu adjacent to the area of each of the previous farmland in this case, and satisfied the requirements for residing within one year from the date of transfer of each of the previous farmland in this case.

(3) On the date one or more years have elapsed since the date of transfer of the previous farmland in the case where the Plaintiff was a household member, and there was a special circumstance, such as the fact that the Plaintiff was difficult for the Plaintiff to recover the farmland at the time of the transfer, even if he had been able to do so in the location of the land in this case from May 6, 2008.

(3) Nevertheless, the disposition of this case is unlawful.

B. Determination

(1) The reduction or exemption of capital gains tax due to substitute farmland pursuant to Article 70(1) of the Restriction of Special Taxation Act and Article 67(3)1 of the Enforcement Decree of the same Act shall be one year or longer and directly cultivated (the resident engages in the cultivation of crops or the growing of perennial plants on his own farmland at ordinary times, or the cultivation or cultivation with his own labor not less than one half of farming work) while living in the previous farmland for not less than three years, the previous land shall be subject to agricultural income tax; Presidential Decree No. 2037, Mar. 2, 2007; Presidential Decree No. 20347, Feb. 2, 2007; Presidential Decree No. 20357, Feb. 23, 2006>

In addition, the purport of the provision of capital gains tax reduction or exemption is to protect farmers through the free permission and guarantee of substitution of farmland, or to promote the development and encouragement of agriculture. Therefore, it should be limited to the case where the farmland acquired and sold by the self-employed farmer is to be exchanged for the purpose of cultivation as necessary. Thus, it is reasonable to view that the residence and self-defense in the new location of farmland should be done for the same period for at least three years, unless there are special circumstances, and at least within one year from the date of transfer of the previous farmland (see, e.g., Supreme Court Decision 2002Du5924, Sept. 5, 2003).

(2) First, as to the assertion that the dwelling at each of the instant substitute farmland located within one year from the date of the transfer of each of the instant previous farmland is not a requirement for reduction or exemption, the foregoing assertion is without merit, in light of the above legal principles.

(3) Next, as to whether the Plaintiff resided and scambling in each of the instant substitute farmland within one year from December 5, 2007, which was the date of the transfer of each of the instant previous land, it is difficult to believe that the statement of Nos. 6 is false, and the statement of No. 2, 3, and No. 4-1 through No. 4 is insufficient to recognize it. The Plaintiff’s assertion is without merit, as there is no other evidence to acknowledge it.

(4) Furthermore, as to whether there was a special circumstance as to whether the Plaintiff had resided and scambling at the seat of each of the farmland in this case after one year from the date of transfer of each of the previous farmland in this case, it is difficult to view that there was a special circumstance by the reasons alleged by the Plaintiff, and there is no evidence to prove otherwise, and the Plaintiff’s assertion

(5) In addition, with respect to whether the Plaintiff resided in each of the previous farmland of this case for not less than three years and directly cultivated (or regularly engaged in the cultivation of crops or the cultivation of perennial plants on his own farmland, or with the cultivation or cultivation of not less than 1/2 of the farming work with his own labor), it is difficult to believe that each of the entries of the evidence Nos. 5, 9, 10, and 11-1 and 2 is insufficient to recognize it, and there is no other evidence to acknowledge it otherwise.

Therefore, the disposition of this case is legal, and the plaintiff's chief executive officer is no reason to see the plaintiff's chief executive officer.

3. Conclusion

If so, the plaintiff's claim for objection case is without merit, so it is decided as identical with the order.