Cho High Court Decision 201Do3295 ( November 23, 2011)

It is difficult to recognize that previous farmland has been cultivated directly for not less than three years.

Considering the fact that the business of planting trees and agrochemicals or the considerable amount of the beginning work is entrusted to a third party, and the regular workers who work in the construction company and receive a large annual salary are being directly cultivated, it is difficult to deem that not less than 1/2 of the land farming work has been cultivated with their own labor in view of the fact that the area of farmland is too wide in the direct cultivation.

Article 70 of the Restriction of Special Taxation Act

2011Gudan30284 Revocation of Disposition rejecting a request for rectification of capital gains tax

the United Nations A

The Director of the Pacific District Office

July 6, 2012

September 7, 2012

1. The plaintiff's claim is dismissed.

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

On July 11, 2011, the defendant revoked a disposition rejecting a request for correction of capital gains tax against the plaintiff.

1. Details of the disposition;

A. On November 2, 2005, the Plaintiff: (a) on November 2, 2005, the Plaintiff: (b) “the instant land”; (c) 2,327 square meters prior to the Odong-dong 000, Seongdong-gu

D) Upon receipt of a request for consultation for acquisition of public land of the Korea Land Corporation, 200 won on February 17, 2009, 000 won, and 00 won in the amount of bonds compensation applied for deferment of taxation under Article 77-2 of the Restriction of Special Taxation Act, and 20% reduction or exemption of 20% on land for public service under Article 77 of the Restriction of Special Taxation Act was applied to 00 won in cash compensation.

B. On May 17, 201, the Plaintiff filed a request for correction to the effect that the amount of cash compensation shall be KRW 000 by applying 100% reduction and exemption to farmland substitute land under Article 70 of the Restriction of Special Taxation Act, not Article 77 of the Restriction of Special Taxation Act, rather than Article 77 of the Restriction of Special Taxation Act, and the Defendant, on July 11, 201, was unable to be deemed to have cultivated the instant land directly for three or more years on the ground that it is difficult for the Plaintiff to regard it as having cultivated the instant land directly.

[Ground of Recognition] The facts without dispute, as described in Gap evidence 8 and 9 (including each number), and the whole purport of the pleading

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff had worked in the O Construction Co., Ltd. (hereinafter referred to as the "O Construction") from November 2, 2005 to May 201, 201, after transferring the land of this case from November 2, 2005 to acquiring the land of this case, it met the requirements for direct cultivation for not less than three years among the requirements for reduction of and exemption from farmland of this case under Article 70 of the Restriction of Special Taxation Act, since the plaintiff resided within 20 km from the land of this case and directly cultivated bamboo, etc. from the land of this case from May 2, 2011. The disposition of this case by the defendant on a different premise is unlawful, or the relevant laws or regulations.

It is as shown in the attached Form.

C. Determination

(1) In order for the plaintiff to receive "capital gains tax reduction or exemption on substitute land for farmland" under Article 70 of the former Restriction of Special Taxation Act (amended by Act No. 9512 of Mar. 25, 2009, hereinafter the same), the plaintiff needs to first cultivate the land in this case for at least three years while residing in the location of the land in this case, and the burden of proof for such direct cultivation is required to the plaintiff, and the "direct cultivation" means that the resident engages in cultivating crops or growing perennial plants on his own land at all times or by cultivating or cultivating more than half of them with his own labor (Article 67 (2) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21429 of Apr. 21, 2009, hereinafter the same).

(2) First, the Plaintiff asserts to the effect that the period of direct cultivation even after the transfer date of the instant land should be included in the period of "direct cultivation" for not less than 3 years, but the transfer income tax shall be subject to taxation, and the transfer income tax shall be subject to taxation, and the taxation requirements and tax exemption requirements shall be determined at the time of transfer as long as there are no special provisions in the law, so the direct cultivation period after the transfer date shall not be included in the above period

(3) The Plaintiff was a worker who received a high-amount annual salary (income amounting to KRW 000 in 2006, and KRW 000 in 2005) while working in the O Construction until January 2007, there is no dispute between the parties. Even if the Plaintiff was directly cultivated for about 2 years and 2 months from January 2007 to the date of the transfer of the instant land, it is acknowledged that he was directly cultivated for about 10 months, namely, directly cultivated for about 10 months, and cultivated or cultivated with his own labor for about 10 months before that date.

(4) Meanwhile, the Plaintiff, from November 2, 2005 to January 2, 2007, requested KimB residing in the vicinity of the instant land to dispose of waste dysium and embling them into mags by purchasing 450 mar trees in the vicinity of the instant land and planting them directly into 30 to 30 marbling and planting them, and the Plaintiff appears to have no other evidence of these 5 marling for 1 to 30 marling for 1 to 30 marling for 5 marling for 1 to 30 marling for 5 marling for 1 to 30 marling for 5 marling for 1 to 30 marling for 5 marling for 1 to 5 marling for 20 marling for marling for 30 marling for marling or 5 marling for 20 marling.

(5) Ultimately, since the Plaintiff’s direct cultivation of the instant land was not recognized for three years or more, the Plaintiff’s assertion is without merit, and the instant disposition by the Defendant is lawful.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.