Incheon District Court 2009Guhap410 ( August 27, 2009)

Examination Transfer 208-0261 ( December 23, 2008)

Where farming is suspended after the basic investigation of land and obstacles caused by a development project is commenced;

Even if the cultivation of the land was suspended after the commencement of the basic survey on the land and obstacles caused by the development project, such reasons alone cannot be deemed as temporary suspension of land, and thus, it cannot be deemed as farmland as of the date of transfer.

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

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of capital gains tax of KRW 56,396,310 against the plaintiff on August 1, 2008 shall be revoked.

1. Circumstances of the disposition;

A. On August 9, 2007, the Plaintiff transferred ○○○○○○○○-dong 509-3 Dool 992 square meters (the above land was divided into 661 square meters and 509-19 m2, Nov. 12, 2002; hereinafter referred to as “the instant land”) to ○○○○○○-dong 509-3 Dool, and filed a preliminary return on the transfer income tax with the Defendant on September 21, 2007, on the ground that the instant land was reduced or exempted from the transfer income tax under Article 69 of the Restriction of Special Taxation Act, on the ground that it was the reduction or exemption of the transfer income tax on the instant land for not less than eight years.

B. On August 1, 2008, the Defendant issued the instant disposition imposing KRW 56,396,310 on the Plaintiff on the ground that the instant land does not constitute a self-major farmland for at least eight years subject to reduction and exemption of capital gains tax.

C. The Plaintiff’s objection filed on August 8, 2008, but was dismissed. The Plaintiff filed a request for examination with the National Tax Service on November 17, 2008, but was dismissed on December 23, 2008.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 6, 7, 9, 10, Eul evidence Nos. 1 through 3 (including paper numbers), the purport of the whole pleadings

2. The plaintiff's master;

From 194 to 2004, the Plaintiff had resided in ○○○○○○ or its adjacent area where the instant land was located while cultivating yeasts, including drilling and capital reduction, on the instant land for more than eight years. Since the instant land was subject to expropriation through ○○○○ Development Project, it was interrupted after undergoing a basic investigation on land and obstacles, and it was deemed that it was farmland at the time of transfer and temporary closure. Thus, the instant disposition that was otherwise reported was unlawful, even though it constitutes an exemption from capital gains tax under Article 69(1) of the Restriction of Special Taxation Act.

3. Customs-related statutes;

It is as shown in the attached Form.

4. Determination

A. The land for which the capital gains tax may be reduced or exempted pursuant to Article 69(1) of the Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 31, 2001; hereinafter the same shall apply) and Article 66(1), (2) and (5) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20620 of Feb. 22, 2008; hereinafter the same shall apply) shall be the land directly cultivated by the residents prescribed by Presidential Decree who reside in the location of the farmland for not less than eight years and is subject to taxation of agricultural income tax as of the date of transfer (including the land subject to non-taxation, reduction, and exemption and small collection).

The transfer date which forms the basis for determining farmland shall be the date of liquidation unless otherwise provided for in each subparagraph of Article 162 (1), such as the case where the registration of ownership transfer is made prior to the settlement of price, pursuant to Article 66 (5) of the Enforcement Decree of the Restriction of Special Taxation Act and Article 162 (1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 323, Oct. 15, 2007); and it shall be interpreted equally in the case of transfer due to expropriation (see, e.g., Supreme Court Decisions 200Du6282, Apr. 12, 2002; 2004Du6914, May 13, 2005).

In addition, in light of Article 70 (1) of the Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 579 of Oct. 29, 2007) and Article 2 subparagraph 1 of the Farmland Act (amended by Act No. 8749 of Dec. 21, 2007) and Article 197 of the Local Tax Act concerning agricultural income under Article 197 of the Local Tax Act (amended by Act No. 8694 of Dec. 14, 2007), the farmland in this context is reasonable to interpret the farmland as land actually used for cultivating crops, etc. regardless of its land category on the register of dry field, paddy field, orchard, etc., and the transferor must prove that it constitutes farmland (see Supreme Court Decision 94Nu996, Oct. 21, 194).

나. 갑 제6, 7, 13, 14호증, 을 2호증, 갑14호증(가지번호 포함)의 각 기재에 변론 전체의 취지를 종합하면, 이 사건 토지가 ○○○○ △△개발사업에 편입된 후 사업시행자인 ◇◇◇◇공사와 원고 사이에 협의가 이루어지지 아니하여 수용절차를 거쳐 보상금을 수령한 후 2007. 8. 9.자 양도를 원인으로 소유권이전등기를 마쳤고, 원고는 2007. 8. 20.자로 양도소득세 예정신고서를 작성하여 피고에게 제출한 사실이 인정되므로, 이 사건 토지의 양도일은 그 ◆◆◆산이 이루어진 것으로 보이는 위 소유권이전등기원인 일자인 2007. 8. 9.로 봄이 상당하다. 따라서, 비록 원고 주장과 같이 원고가 1994년부터 2004년까지 8년 이상 이 사건토지를 직접경작하여 왔더라도, 조세특례제한법에 따라 양도소득세를 감면받기 위해서는 위에서 본 법리에 따라 이 사건토지가 그 양도일인 2007. 8. 9. 현재로 실제로 경작에 사용되고 있는 토지라야 한다.

(1) However, comprehensively taking account of the overall purport of arguments and videos on Gap evidence Nos. 7, Eul evidence Nos. 4, 5, 14, and 15 (including paper numbers) and Eul evidence Nos. 15,936,832, and received compensation 15,932, after consultation with △△△△ Corporation on December 7, 2005 on the compensation of obstacles to the land of this case. The records of obstacles were 60,000,000,000,000 6,000,000 6,000,000, 6,000, 6,000, 6, 6,000, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6, 6.

(2) Furthermore, as alleged by the Plaintiff, even if the cultivation of the instant land was suspended after the commencement of the basic survey on the land and obstacles caused by the above development project on September 2004, such cause does not fall under the grounds prescribed in the proviso of Article 66(5) of the Enforcement Decree of the Act on Special Cases concerning Taxation, which provides that the date of transfer and the date different from that of farmland shall be deemed the base date for the determination of farmland, and such reason does not constitute a temporary absence, and it cannot be deemed that the instant land is farmland as of the date of transfer (see Supreme Court Decision 2006Du13183, Apr. 11, 2008), and such judgment does not interfere with the above.

C. Therefore, the instant disposition that the Defendant did not grant a reduction or exemption of capital gains tax under Article 69 of the Restriction of Special Taxation Act is lawful, and the Plaintiff’s assertion is without merit.

5. Conclusion

The plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance is just in its conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.