Cho High Court Decision 2016Do1570 ( October 11, 2016)

It can be seen that the testimony of the non-party, the confirmation document of neighboring residents, the simplified receipt, etc. can be deemed to have been significantly 8 years or more

According to the simplified receipt presented by the Plaintiff as a self-written evidence, the confirmation of neighboring residents, and the testimony of the 1/2 equity holders, etc., it seems that the 8-year self-defense has been made.

Article 69 of the Restriction of Special Taxation Act (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

2017Gudan132 Revocation of Disposition of Imposing capital gains tax

○ ○

○ Head of tax office

on October 24, 2017

on 14, 2016

1. The Defendant’s imposition of capital gains tax of KRW 6,238,530 (including additional taxes) and special rural development tax of KRW 3,306,380 on January 4, 2016 against the Plaintiff on January 4, 2016 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff acquired 1/2 shares on November 23, 198, among the ○○○-○○○-○○○○○, and 132 square meters (hereinafter “instant land”) in the Guri-si, Guri-si (hereinafter “instant land”), but sold on June 29, 2015.

B. On August 31, 2015, the Plaintiff filed a preliminary return of capital gains tax base with the Defendant on August 31, 2015, while residing in the vicinity of the instant land and directly cultivated the instant land for at least eight years, and filed an application for reduction or exemption for capital gains tax of KRW 110,212,985 pursuant to Article 69 of the former Restriction of Special Taxation Act (wholly amended by Act No. 13560, Dec. 15, 2015).

C. However, on January 4, 2016, the Defendant decided and notified the Plaintiff of KRW 96,238,530 (including additional taxes) of the transfer income tax belonging to the year 2015 and KRW 3,306,380 of the special rural development tax (hereinafter “instant disposition”).

D. Accordingly, on April 6, 2016, the Plaintiff filed an appeal against the instant disposition with the Tax Tribunal, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s appeal on November 10, 2016.

[Ground of recognition] No dispute, Gap evidence Nos. 1, 2, Eul evidence No. 1 and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The issues of the instant case

Whether or not the Plaintiff has reed the instant land for at least eight years

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The witness Eul testified to the effect that "the plaintiff has cultivated crops directly from the time of acquiring the land of this case to the time of sale" in this court as the children of South A who owned the remainder of 1/2 shares in the land of this case. The contents of the testimony are very specific and consistent, and there are no parts showing lack of objective rationality in the contents of the testimony. In addition, considering the witness's attitude of testimony in this court, it is judged that the contents of the witness's testimony can be reliable. In addition, the following circumstances acknowledged by comprehensively considering the overall purport of the statements and arguments as follows: Gap evidence 11, evidence 16 through evidence 19; the plaintiff kept each simplified tax invoice that he purchased seeds, fertilizers, etc. from before 200, and the plaintiff prepared a confirmation document that he directly cultivated the farmland of this case from the 1980s to the time of the plaintiff's possession of the farmland of this case; the plaintiff did not appear to have any other reasons to view that the plaintiff directly cultivated the farmland of this case.

2) Furthermore, pursuant to Article 66(14) of the Enforcement Decree of the Restriction of Special Taxation Act (hereinafter “the provision in this case”), the defendant asserts that the disposition in this case is legitimate since the period for the plaintiff cultivated is less than 8 years if the plaintiff cultivated the taxable period which is not less than 37 million won. However, the provision in this case is a newly established provision on February 21, 2014 and Article 1 of the Addenda (No. 2521) of the Enforcement Decree of the Restriction of Special Taxation Act provides that "the amended provision on transfer income tax shall apply from the transfer after this Decree enters into force," while Article 2 provides that "the amended provision on transfer income tax shall apply from the transfer after this Decree." However, if the facts are already completed before the enforcement of the provision in this case, i.e., the violation of property right under the retroactive legislation prohibited if the period is more than 8 years prior to its enforcement, and the provision in this case has not been applied directly to the plaintiff for more than 8 years prior to its enforcement.

D. Sub-committee

Therefore, the instant disposition was unlawful on a different premise from the facts acknowledged earlier.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for the reasons and it is so decided as per Disposition.

Related Acts and subordinate statutes

/ former Restriction of Special Taxation Act (wholly amended by Act No. 13560, Dec. 14, 2015)

Article 69 (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

(1) With respect to income accruing from the transfer of land prescribed by Presidential Decree, among the land cultivated directly by a resident prescribed by Presidential Decree, who resides in farmland for at least eight years [where such farmland eligible for subsidies for direct payments transfer prescribed by Presidential Decree is transferred no later than December 31, 2015 to the Korea Rural Community Corporation established under the Korea Rural Community Corporation and Farmland Management Fund Act or corporations prescribed by Presidential Decree which mainly engage in agriculture (hereafter in this Article, referred to as "agricultural corporations"), not less than three years] by the means prescribed by Presidential Decree, the tax amount equivalent to 100/100 of capital gains tax shall be reduced or exempted: Provided, That where the relevant land is incorporated into a residential area, commercial area or industrial area established under the National Land Planning and Utilization Act (hereafter in this Article, referred to as "residential area, etc.") or has been designated as a land other than farmland before a replotting disposition is taken pursuant to the Urban Development Act or other Acts, the amount of tax equivalent to 100/100 of capital gains tax shall be reduced only on the income prescribed by Presidential Decree which

(3) Any person who intends to have paragraph (1) applied shall file an application for reduction, as prescribed by Presidential Decree.

(1) Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26316, Jun. 15, 2015)

Article 66 (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

(4) "Land prescribed by Presidential Decree" in the main sentence of Article 69 (1) of the Act means the farmland that has been cultivated by himself/herself for at least eight years (three years where farmland eligible for the payment of management transfer subsidies under paragraph (3) is transferred to the Korea Rural Community Corporation or to a corporation under paragraph (2)) from the time of its acquisition to the time of its transfer, excluding the farmland falling under any

(13) "Direct cultivation in the manner prescribed by Presidential Decree" in the main sentence of Article 69 (1) of the Act means that a resident engages in cultivating crops or growing perennial plants on his/her own farmland at all times, or cultivates or cultivates at least half of farming works with his/her own labor.

(14) Where there is a business income under Article 19 (2) of the Income Tax Act (excluding income accruing from agriculture or forestry, income accruing from a real estate rental business under Article 45 (2) of the Income Tax Act, and side business income of a farm household under Article 9 of the Enforcement Decree of the same Act) of the relevant decedent (including his/her spouse; hereafter the same shall apply in this paragraph) or a resident during the period of cultivation under paragraphs (4), (6), (11) and (12) and a taxable period in which the total amount of gross income under Article 20 (2) of the same Act is not less than 37 million won, such period shall be excluded from the period cultivated by the decedent or resident.

The Addenda Article 25211, 2521, and 21

Article 1 (Enforcement Date) This Decree shall enter into force on the date of its promulgation: Provided, That the amended provisions of Article 109-2 shall enter into force on April 1, 2014, and the amended provisions of Articles 66 (14), 66-2 (13), 67 (1), (3), (4), (5), (6) and (6), and 116-2 (5), (6), (8), (19), (20) and (21) shall enter into force on July 1, 2014, and the amended provisions of Articles 63 (1), (2), (3), (7), (8), and (10), 64, 65, 100-2 (4), and 100-6 (2) 4 shall enter into force on January 1, 2015.

Article 2 (General Application Examples)

(3) The amended provisions concerning capital gains tax in this Decree shall apply to the portion transferred after this Decree enters into force. The end of this Decree.