Early High Court Decision 2016J 0794 ( October 26, 2016)

Whether the Plaintiff directly cultivated the instant land for at least eight years

No reduction or exemption may be recognized on the ground that there is no evidence of the fact that the Plaintiff directly cultivated the instant land for at least eight years.

Article 69 of the Restriction of Special Taxation Act

Suwon District Court 2016Gudan8146 ( December 21, 2016)

Does*

00. Head of tax office

December 7, 2016

December 21, 2016

1. The plaintiff's claim is dismissed.

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

The imposition disposition of capital gains tax of KRW 000,000 (including additional tax) for the year 2014, which the defendant of the Gu office-employed branch made to the plaintiff on July 3, 2015 shall be revoked.

1. Details of the disposition;

A. On September 19, 1985, the Plaintiff acquired and owned a lot of 933 square meters (hereinafter “instant land”) in Seoul 00-Gu 00-dong 332, 332, and on February 7, 2014, the Plaintiff registered the ownership transfer to Nonparty 00 on the ground of sale by compulsory auction on the said land.

B. The Plaintiff filed an application for reduction or exemption of capital gains tax on April 30, 2014 on the ground that he/she had done so for more than eight years at the time of filing a report of capital gains tax on the instant land. However, on July 3, 2015, the Defendant excluded the Plaintiff from capital gains tax reduction or exemption on the ground that the Plaintiff’s act of self-determination was not verified as a result of the investigation of capital gains tax conducted by the Plaintiff, and notified the Plaintiff of the correction and notification of KRW 000 (including additional tax) of capital gains tax for the year 2014 (hereinafter “instant disposition”). The Plaintiff filed an appeal with the Tax Tribunal on February 22, 2016, but was dismissed on April 26, 2016.

[Ground of recognition] No dispute, Gap 1, 2, 4 (including virtual number), Eul 1, and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

After purchasing the instant land, the Plaintiff, from September 19, 1985, installed a vinyl on the instant land from around December 19, 1985, and cultivated crops, such as vegetables, on the land above about 15 years to December 31, 200, and thereafter, had a third party cultivate crops, and had a third party cultivate them directly from June 1, 2013 to February 7, 2014. Accordingly, in the case of the Plaintiff, even though the Plaintiff satisfies the requirements for reduction of self-arable farmland under the Restriction of Special Taxation Act, the disposition of this case by the Defendant is unlawful. (b) The relevant Acts and subordinate statutes are unlawful.

Attached Form is as shown in the attached Form.

C. Determination

1) Relevant legal principles

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 directly cultivate the relevant farmland (hereinafter referred to as “self-support requirement for convenience”) while residing in a Si/Gun/Gu where the relevant farmland is located for at least eight years, or in a Si/Gun/Gu adjacent to the relevant farmland, or in an area within 20km of a straight line from the relevant farmland (hereinafter referred to as “self-production requirement for convenience”). The term “self-production” in this case means that a resident is constantly engaged in cultivating crops or growing perennial plants with his/her own labor, or is subject to reduction or exemption of 1/2 or more of capital gains tax (see, e.g., Supreme Court Decision 2010Da19497.).

According to the reasoning of each entry and pleading by Gap 5 through 8 (including the land number), the Plaintiff was unable to dispute, or according to the overall purport of each entry and pleading by the court below, and the period from September 19, 1985 to December 31, 200 to 8 years and 4 months in which the Plaintiff resided within 20km in a straight line from the land of this case, including Seoul 00 Gu and 00 Gu, and the Plaintiff was transferred approximately KRW 80,000 to 00,000 in total from April 27, 2000 to May 2, 200. The Plaintiff prepared a certificate of confirmation that the Plaintiff directly cultivated dry field crops from the land of this case for the period of his assertion from January 5, 2014 to December 31, 2014, it is difficult to recognize the Plaintiff’s total purchase of dry field crops from 00 to 70,000,000 won of the evidence as seen above.

○ 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.

○ The Plaintiff had a total of 34 occasions of resident registration during the instant period of possession. During the period of cultivation claimed by the Plaintiff, the Plaintiff registered 13 business in total, including inn business (a year and 9 months), new retail business (a period of about three years and 10 months), real estate rental business (a period of about 18 years and up to about four years), housing construction and sales business (a period of about four years), and door-to-door business (a period of three months), etc. The details of remittance received from 00 crys, etc. (a period of KRW 6-1) that the Plaintiff submitted to the Plaintiff as the sales proceeds of collected salt, etc. cultivated on the instant land, which is the date of the instant transaction, and it is difficult to verify that the Plaintiff had a specific domicile between April 27, 2000 and May 2, 200, and that the Plaintiff had a total of 3 years and more than 3 months of receipts from around 200 to May 17, 2014.

○ The Plaintiff asserted that the instant land was cultivated directly at the time of auction, but does not clearly specify how dry field crops were cultivated during the period of re-villageing. Since the transfer income tax investigation, there was no data on the possession of farming machines, farming instruments, etc. necessary for self-defense from the time of the instant land to the time of the instant lawsuit.

○ Ultimately, even if the Plaintiff directly cultivated dry field crops, such as cry field, from the above land immediately before the land was put up for auction, insofar as objective data to verify that the Plaintiff was self-employed in the above land for at least eight years during the period of re-villageing, it is difficult to deem that the Defendant erred by strictly interpreting the provision on self-employed farmland reduction and exemption, thereby excluding the Plaintiff from capital gains tax reduction and exemption.

3) Therefore, the Plaintiff’s assertion cannot be accepted, and the instant disposition is lawful.

3. Conclusion

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