8 Whether it constitutes reduction of or exemption from self-farmland;

Since there was a fact that he was leased as a flower seller at the time of transfer, the reduction and exemption disposition is legitimate because he does not fall under farmland.

Article 69 of the Restriction of Special Taxation Act: Capital gains tax reduction or exemption for self-farmland

206Nu2624 Revocation of disposition of imposing capital gains tax

BUBE

Madern Head of Tax Office

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 disposition of the Defendant rendered against the Plaintiff on February 1, 2005 by 96,464,760 of the transfer income tax belonging to the year 2003 shall be revoked.

1. Details of disposition;

A. On June 27, 1991, the Plaintiff acquired the ownership of 00 m2,351 m2,351 m2,00 m2 (hereinafter “instant land”) in ○○○-dong, ○○○○-dong, 136-7 m2,351 m2 (hereinafter “instant land”). On December 30, 2003, the Korea National Housing Corporation, in the future, made a registration of ownership transfer with the acquisition of public land on December 30, 203, and made an application for reduction of capital gains tax to the Defendant

B. On February 1, 2005, the Defendant rendered the instant disposition imposing capital gains tax of 96,464,760 won on the Plaintiff for the year 2003, deeming that the instant land does not fall under the reduction and exemption of self-arable farmland.

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1 and 2 evidence, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition is unlawful on the following grounds.

(1) Since the purchase of the instant land on June 21, 191, the Plaintiff continued to install flower stores for the sale of flowers, etc., and in this case, flowers also constitute farmland under the former Enforcement Decree of the Farmland Act (amended by Act No. 8352 of Apr. 11, 2007; hereinafter referred to as the "former Farmland Act"). Since the purchase of the instant land constitutes farmland under Article 2 (1) 3 of the former Enforcement Decree of the Farmland Act (amended by Presidential Decree No. 19281 of Jan. 20, 206; hereinafter referred to as the "former Enforcement Decree of the Farmland Act"), the part of the flower farming among the instant land should not be deemed farmland under Article 2 (1) 1 (a) of the former Enforcement Decree of the Farmland Act (amended by Presidential Decree No. 19281 of Jan. 20, 200) or farmland under Article 2 (1) 2 (b) of the former Enforcement Decree of the Farmland Act (amended by Ordinance of the Ministry of Finance and Economy).

(2) On May 20, 2004, the Plaintiff purchased farmland of 8,095 square meters in Gyeonggi-do, ○○○-gun, ○○○○-gun, ○○○○○-gun, in full remaining sales proceeds after repaying its debts among the sales proceeds of the instant land. As such, income from the sale of the instant land constitutes income from substitute land of farmland under Article 89 subparag. 4 of the former Income Tax Act (amended by Act No. 7837, Dec. 31, 2005; hereinafter referred to as the “former Income Tax Act”) and thus is subject to exemption from capital gains tax.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to the assertion of capital gains tax reduction under the Restriction of Special Taxation Act

(A) Whether the instant land is farmland under the former Farmland Act

It is insufficient to recognize that the land of this case is being used as a multi-vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable 1 to 3 under Article 2 (1) of the former Enforcement Decree of the Farmland Act. Rather, according to the records of Eul evidence No. 7 and Eul evidence No. 8-1 to 3 of the former Enforcement Decree, the land of this case at the time of the transfer of this case can be recognized as being used as the site of vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vese.

(b) Whether the Plaintiff has filled up the instant land for not less than eight years

갑7호증, 갑8호증의 1, 2, 갑9호증의 1내지 3의 각 기재만으로는 원고가 이 사건 토지를 취득한 때로부터 양도할 때까지 사이에 8년 이상 계속하여 직접 자경한 사실을 인정하기에 부족하고, 달리 그 사실을 인정할 증거가 없으며, 오히려 을3호증의 1내지 11, 을4, 6호증, 을8호증의 1내지 3의 각 기재에 변론 전체의 취지를 종합하면, 이 사건 토지는 1998. 6. 25.경부터 타에 임대되어(조◇◇, 김◆◆, 우□□, 백■■ 등이 이 사건 토지를 사업장 소재지로 하여 생화 등 도·소매업을 업종으로 한 사업자등록을 하였다) 원고에 의하여 자경되지 않는 상태로 있었고, 2003. 12.경 이 사건 토지의 양도 당시에도 계속 이 사건 토지는 위 조◇◇ 등 생화 등 도·소매업자들이 운영하는 화원의 사업장 부지로 사용되고 있었던 사실을 인정할 수 있는바, 사실관계가 위와 같다면, 원고가 이 사건 토지 취득시부터 양도시까지 사이의 기간 동안 8년 이상 계속하여 직접 경작한 사실이 있었다고 볼 수 없으므로, 원고는 이 사건 토지의 양도 당시 구 조세특례제한법(2003. 12. 30. 법률 제7003호로 개정되어 2004. 1. 1.부터 시행되기 전의 것, 이하 '구 조세특례제한법'이라 한다) 제69조 제1항 소정의 양도소득세 감면요건을 갖추지 못하였다고 할 것이다.

(C) Therefore, the Plaintiff’s assertion that the instant land constitutes an exemption from capital gains tax for self-Cultivating farmland under Article 69 of the former Restriction of Special Taxation Act is without merit.

(2) Whether a substitute land for farmland constitutes a non-taxation subject to income tax

Since capital gains tax exemption due to substitute land for farmland under Article 89 of the former Income Tax Act is premised on the fact that the subject matter of transfer is farmland, it is mainly used as a flower sale place and a parking lot site around December 2003, which is at the time of transfer, and it cannot be viewed as farmland under the former Farmland Act. Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the disposition of this case is legitimate, and the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Justices Kim-ham-am-am-am-am-am-am-am-am-am-am-am-am-am

Justices Kim Jong-chul-amis-amams-ams-ams-ams-ams-am

Justices Kim Yong-am-am-am-am-am-am-am-am-am-am-am-am-am.