Incheon District Court 2008Gudan2030 ( October 15, 2010) Other one consolidation

National Tax Service Review and Transfer 2008-0112 (Law No. 25, 2008)

No person shall be deemed to have been self-employed for more than eight years;

In light of all the circumstances, such as the Plaintiff’s father and punishment resided in the location of land and cultivated other farmland owned by the Plaintiff, and there are other things that the Plaintiff should concentrate on, the Plaintiff cannot be deemed to have self-employed for not less than eight years, and thus, the disposition that the Plaintiff denied the application for reduction of capital gains tax and imposed is legitimate.

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 defendant's imposition of capital gains tax of KRW 17,361,660 on April 1, 2008 against the plaintiff and the imposition of capital gains tax of KRW 131,13,020 on January 16, 2009 shall be revoked, respectively.

1. Details of the disposition;

A. On March 22, 1995, the Plaintiff: (a) donated 425 m2, 00 m25 m2, 000 m2, 179 m2, 426-2 m2, 354 m2 (hereinafter referred to as “B”); (b) on June 29, 1985, acquired one-third of the 441-7 m2, 129 m2, and held one-third of the 129 m2, 2006 m2, each of the above farmland was expropriated into the Korea Land Corporation on December 18, 2006.

B. The Plaintiff filed an application for reduction or exemption of capital gains tax in accordance with Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 9276, Dec. 29, 2008; hereinafter the same) on the ground that he/she had cultivated the above ① or ③ land for at least eight years upon filing a report on capital gains tax for the year 2006, but the Defendant denied the application for reduction or exemption and notified the Plaintiff of KRW 17,361,660 for capital gains tax for the year 2006 (hereinafter “instant first disposition”).

다. 한편 원고는 2001. 11. 7. ○○시 △△면 ◁◁리 729-3 답 1,416㎡(이하 '④토 지')를, 2003. 12. 4. 같은 리 724-3 답 42㎡(이하 '⑤ 토지')를 각 취득하여 보유하다가 위 ④ 토지는 2007. 4. 19. 권AA, 권BB에게, 위 ⑤ 토지는 권BB에게 각 양도하고, 2008. 3. 27. ○○시 △△면 △△리 88-1 전 129㎡, 같은 리 88-2 전 317㎡, 같은 리 88-3 전 221㎡, 같은 리 88-4 전 936㎡를 취득하였다.

D. The Plaintiff filed an application for reduction or exemption of capital gains tax by deeming that the Plaintiff’s return of capital gains tax reverted to year 2007 constituted a substitute farmland for farmland as stipulated in Article 70 of the Restriction of Special Taxation Act. However, the Defendant denied the application for reduction or exemption and notified the Plaintiff of KRW 131,13,020 (hereinafter “instant disposition”) on January 16, 2009.

[Grounds for Recognition: Gap's evidence 1, 2, 9, 10, Eul evidence 1, 3, 5, 7

2. The plaintiff's assertion

The Plaintiff, as a person who had been engaged in farming and fishing at the time when he was born in rural areas, was born with a new stop before his work and left after his work, was cut. The Plaintiff 1 to 3 on the above-mentioned hours: (a) cultivation of the Plaintiff’s fishing force with the entire or at least 1/2 of the farming work on the land; (b) cultivation of the drilling, drilling, wave, spawn, and spathn trees, etc.; and (c) direct cultivation of the crops, such as spawn and spathn in the above land, each of the dispositions of this case,

3. Attached Form of the relevant Acts and subordinate statutes;

4. Whether the disposition is lawful.

(a) Facts of recognition;

(1) On January 11, 1992, the Plaintiff, ○○-si, ○○, transferred 539-1 1005 Do 1005 Do 101 Do 1005 Do 1996, but on October 7, 1996, transferred the said apartment to ○○-dong 441-2 Do 204 Do 1999, after he transferred the said apartment, on March 28, 1997.

(2) The Plaintiff was employed as a public official in charge of the prosecution from November 2, 1987. From 1997, the Plaintiff was employed in the office of public official in charge of the prosecution, from the office of the prosecutors' office located in Yongsan-gu ▽△△△△△dong in 1997, from the office of the public prosecutor's office located in BB located in AAdong in 1998, from the office of the public prosecutor's office located in BB in 1999 and 2000, from the office of the public prosecutor's office located in BB in 1999 and 2002, from the office of the ▽△△△△△△△△ in 2001 and 2003, from the office of the public prosecutor's office located in the Gu, from the office of the public prosecutor's office located in the Gu in 2003 to the pertinent office of the public prosecutor's office of 41-284m distance from the Plaintiff's resident registration.

(3) On May 28, 1996, the Plaintiff became a member by investing 261 unit (5,000 won per unit), 1,305,000 won paid, in △△○ Agricultural Cooperative’s 261 unit (5,000 won per unit), and was supplied with 9 chemical fertilizers on February 16, 2004.

(4) The Plaintiff was born and grown in ○○ City, both his father, KimCC and MaDD were living in ○○○○○○○○○○○○○, and the head of KimE, the head of ○○ City, resides in △△△△△△ 89.

(5) 원고는 위 ① 내지 ⑤ 토지 외에도 1995. 3. 22. 취득한 ○○시 ○○동 177-9 답 3,284㎡, 2001. 11. 7. 취득한 ○○시 △△면 ◁◁리 725 답 335㎡의 농지를 보유하고 있었는데, 위 177-9 토지는 원고의 아버지와 형 김DD이 경작하였다. 또한 원고가 대체취득 농지라고 주장하는 ○○시 △△면 △△리 88-1, 88-2, 88-3, 88-4 토지는 원고의 장인 김EE이 경작하였다.

[Grounds for Recognition: Evidence Nos. 2 through 6, Eul 2, 3 and 8 through 25]

(b) Whether it falls under the reduction or exemption of capital gains tax on self-arable farmland;

(1) In full view of Article 69(1) of the former Restriction of Special Taxation Act and Article 66 of the Enforcement Decree thereof, where a resident living in a Si/Gun/Gu where farmland is located or in an area located in a Si/Gun/Gu adjacent thereto has cultivated directly for not less than eight years from the time when the farmland is acquired to the time when the farmland is transferred, the amount of tax equivalent to 100/100 of the transfer income tax on the income accruing from the transfer of the land shall be reduced. The burden of proof on the requirements for reduction and exemption lies on the person liable for tax payment who asserts exemption of the transfer income tax (see, e.g., Supreme Court Decisions 94Nu12708, Apr. 26, 1996; 96, Oct. 21, 1994). In addition, Article 6(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 20620, Feb. 22, 2008) provides that he/she directly owns or regularly owns agricultural crops.

(2) In the instant case, it is difficult to employ the Plaintiff’s statements on Gap’s evidence Nos. 7 and 11 through 14, which correspond to the Plaintiff’s direct cultivation of the above land, in light of the following various circumstances. Each statement on Gap’s evidence Nos. 4 through 6, 8 through 10, and 15 (including the virtual numbers) and testimony on the witness leF of the first instance trial is insufficient to recognize it. There is no other evidence to acknowledge it. Rather, as seen earlier, the Plaintiff’s father and punishment were living in the above ① or the above land, and cultivated other farmland owned by the Plaintiff, which is located in the said land, and there is a difference to the Plaintiff’s prosecutorial officer, and the Plaintiff has to pay attention to the total amount of KRW 2,034 square meters. In addition, it is difficult to deem that the Plaintiff engaged in farmland with the total sum of up to 5,653 square meters, and there is no farmland registered as farmland in the farmland ledger.

(c) Whether it constitutes an exemption from capital gains tax on substitute farmland;

(1) According to Article 70(1) of the former Restriction of Special Taxation Act and Article 67 of the Enforcement Decree thereof, in order to constitute a substitute farmland for which the amount of tax equivalent to 100/100 of the transfer income tax is reduced, a person directly cultivates the farmland while residing in a Si, Gun, or Gu where the farmland is located or in a Si, Gun, or Gu adjacent thereto for at least three years, and a substitute farmland acquired within one year from the date of transfer should be cultivated for at least three years. The purpose of this is to protect farmers and promote the development and promotion of agriculture by permitting and guaranteeing free body of farmland (see, e.g., Supreme Court Decision 87Nu706, Mar. 8, 198). Meanwhile, Article 67(2) of the Enforcement Decree of the same Act provides that a person who directly cultivates the farmland refers to a person who is engaged in cultivating or cultivating the farmland at least 29/100 of his/her own ability to cultivate or cultivate the farmland at all times (see, e.g., Supreme Court Decision 290Da296.

(2) In the case of this case, the evidence that corresponds to the fact that the plaintiff directly cultivated the above 4 and 4 and 4 and there is no other evidence to acknowledge it. Rather, other than the above various circumstances, the above 4 and 4, the land is located considerably away from the plaintiff's domicile, but the above 4, the land is located within the same Myeon (△△△△△) where the plaintiff's head, Kim E, and 4, the land is acquired as a substitute farmland, and the above substitute farmland is cultivated by the plaintiff's head, and it is difficult to see that the plaintiff's land is cultivated by the plaintiff.

5. Conclusion

Therefore, the plaintiff's claim seeking the revocation of each of the dispositions of this case is unlawful on the premise that the above (1) through (5) all land constitutes the reduction of capital gains tax, and is dismissed on the ground that the disposition of this case is unlawful, and the judgment of the court of first instance is justified in conclusion. It is so decided as per Disposition.