Daejeon District Court-2014-Gu Group-1241 ( October 27, 2015)

Seocho 2014 Daejeon District Court Decision 1380 ( October 23, 2014)

The plaintiff cannot be deemed to have cultivated as a regular high school teacher for more than eight years, and constitutes a non-business land, and not falling under the grounds for exemption from penalty tax.

The Plaintiff cannot be deemed to have cultivated at least 1/2 of the farming works with the Plaintiff’s labor for not less than eight years, in which the Plaintiff was attending a high school regular teacher at 2007-2008 educational graduate school, and which has been deferred by the entries in the farmland ledger. When determining non-business land, it is the same as direct cultivation under the Restriction of Special Taxation Act, and it does not fall under the grounds for

Article 69 of the Restriction of Special Taxation Act

2015Nu1102 Revocation of disposition of imposing capital gains tax

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○ Head of tax office

July 23, 2015

September 3, 2015

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 imposition of the capital gains tax (including additional tax) on November 1, 2013 by the defendant against the plaintiff on November 1, 2013 shall be revoked.

1. Details of the disposition;

A. On June 9, 2004, the Plaintiff acquired 701 m275 m2,275 m2,28 m2,275 m2,275 m2,275 m2,278 m277 m2,000 m277 m2,000 m278 m278 m279 m279 m274 on June 17, 2004, and on July 15, 2004, the Plaintiff acquired m275 m2,28 m2,000 m2,00 m275 m275 m2,000 m27 m27 m2,000 m2 (hereinafter referred to as the “instant land”), and on December 31, 2012, transferred the instant land to AA and BB.

B. The Plaintiff filed an application for reduction or exemption of capital gains tax with the Defendant on the ground of one’s own cultivation for at least eight years, and the Defendant denied the reduction or exemption of capital gains tax on one’s own farmland for at least eight years, and denied the special deduction for long-term holding, and imposed capital gains tax (including additional tax) 118,392,180 won on the Plaintiff on November 1, 2013 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Eul evidence 1, Eul evidence 2-2, 3, Eul evidence 5-1 to 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(a) Direct cultivation;

At the time of the Plaintiff’s acquisition of the instant land, ○○○-ri 274, 275 land was planted, and ○○○-ri 276, 277 were discussed, and ○○-ri 278, 279 land was planted, and spaw-ri 279 were planted, and spaw-out trees were planted. The Plaintiff had difficulty in growing spaw-ri 278,279 land for three years. However, it was difficult for the Plaintiff to receive the instant land for a long time, and there was no harvest due to disease. The Plaintiff directly cultivated the instant land for eight years or more by changing the form and quality of the instant land and planting seedlings, such as spaw-ri, spaw-ri, knish, spaw-ri, spaw-ri, spaw-ri

(b) Long-term possession special deduction;

Even if the Plaintiff’s assertion that he cultivated the instant land directly, the Plaintiff had owned the instant land for not less than 8 years, and the “culture” under Article 104-3(1)1(a) of the Income Tax Act includes the help of a family living together with a household or a family living together with a living together with a much larger concept than the “direct cultivation” under Article 66(13) of the Enforcement Decree of the Restriction of Special Taxation Act. Therefore, in calculating the transfer income of the instant land, the special long-term holding deduction of 24% from the transfer difference under Article 95 of the Income Tax Act should be made.

(3) Additional tax

There is room to interpret that the meaning of "direct cultivation" includes cases where a person is cultivated together with another person's household or his/her family members living together, even though both the owner of a special deduction for long-term holding and exemption from capital gains tax due to direct household cultivation and the owner of a special deduction for long-term holding, and such interpretation is likely to be viewed as having been cultivated directly by the Plaintiff. In light of the above, penalty tax should not be imposed on the Plaintiff

(4) Therefore, the instant disposition should be revoked in an unlawful manner.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether direct cultivation is conducted

(A) Under the principle of no taxation without the law, the interpretation of tax laws and regulations shall be interpreted as the law, barring any special circumstance, and it shall not be extensively interpreted or analogically interpreted without any justifiable reason. In particular, it is also consistent with the principle of no taxation fair and equitable interpretation that can be seen as a clear preferential provision in the Regulations on Reduction and Exemption (see, e.g., Supreme Court Decision 2008Du11372, Aug. 20, 2009). Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 11614, Jan. 1, 2013; hereinafter referred to as the “former Restriction of Special Taxation Act”) provides that a person who lives in the place of farmland shall not be deemed to have been directly engaged in the cultivation or transfer of farmland at least 10/100 of the capital gains tax on the income accrued from the transfer of land cultivated by methods prescribed by Presidential Decree for 8 or more years, and that a person who is directly engaged in the cultivation or transfer of farmland at least 16/6/16/6 of the former Enforcement Decree of the Special Taxation Act.

If it is an indirect management, it cannot be deemed that it constitutes such an indirect management (see, e.g., Supreme Court Decision 2002Du844, Oct. 11, 2002).

(B) Therefore, with respect to whether the Plaintiff is engaged in cultivating or growing crops or perennial plants on the instant land for not less than eight years, or has cultivated or cultivated one-half or more of the farming works with the Plaintiff’s labor force, the following circumstances are acknowledged based on Gap evidence 25, Eul evidence 3, and Eul evidence 4 (including each number of branches), and the entire purport of the pleading, namely, the Plaintiff was working as a regular teacher at ○○ High School located in the instant land for 007 to 208, and it was difficult for 000 to 276, 2777 to 208, and the land was deleted on July 20, 205 to 207, and there was no other evidence to recognize that ○○○○ High School located in the instant land was registered on July 27, 2012.

Therefore, this part of the plaintiff's assertion is without merit.

(2) Whether special long-term holding deduction was granted

The former Income Tax Act (amended by Act No. 11611, Jan. 1, 2013; hereinafter referred to as the "former Income Tax Act") delegated by Article 104-3 (1) 1 (a) of the former Income Tax Act

According to Article 168(2) of the Enforcement Decree of the Republic of Korea (amended by Presidential Decree No. 24356, Feb. 15, 2013) and Article 2 subparag. 5 of the Farmland Act, “self-cultivation” means that a farmer is engaged in cultivating crops or growing perennial plants on his/her own land or growing or growing or growing them with his/her own labor, with respect to the scope of a business land for which a special deduction for long-term holding from gains on transfer is made, “self-arable” means that a farmer is engaged in cultivating or cultivating crops or growing them with his/her own labor. This is interpreted as “self-Cultivating” under the former Restriction of Special Taxation Act.

Therefore, the plaintiff's assertion that the long-term possession special deduction should be made on the premise that the cultivation of the "culture" under the former Income Tax Act is larger than the "direct cultivation" under the former Restriction of Special Taxation Act, is without merit.

(3) Whether the imposition of penalty tax is lawful

(A) In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed under the conditions as prescribed by individual tax law in cases where a taxpayer violates various duties, such as a return and tax payment, without justifiable grounds, and thus, it is unreasonable for the taxpayer to be aware of such duties, and thus, it is unreasonable for the taxpayer to be reasonably present or to expect the performance of such duties to be carried out by the party concerned, etc., if there are justifiable grounds that make it unreasonable for the taxpayer to be unaware of such duties, imposition may be exempted (see, e.g., Supreme Court Decision 2003Du4089, Apr. 15, 2005).

(B) Therefore, the meaning of "direct cultivation" under the former Restriction of Special Taxation Act on the reduction and exemption of capital gains tax on self-Cultivating farmland is interpreted differently from the statutory provisions on the grounds that the Plaintiff neglected the obligation to pay capital gains tax on the transfer of land in this case, and there is no other evidence to acknowledge it differently. Thus, the part of the disposition imposing capital gains tax on the transfer of land in this case cannot be deemed unlawful.

(4) The theory of lawsuit

Therefore, the instant disposition is lawful, and the Plaintiff’s assertion seeking the revocation of the instant disposition on a different premise is without merit.

3. Conclusion

Therefore, 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, and it is so decided as per Disposition.