early 2010 Middle 3973 ( October 23, 2011)

It is difficult to recognize that substitute farmland was directly cultivated.

It is difficult to recognize that he directly cultivated substitute farmland in light of the fact that he is engaged in real estate rental business or served as the representative director of a company, that he must move to substitute farmland from his residence to substitute farmland, that he stated that a third party was in a substitute farmland, that he was in a farming house, that he paid money to a third party in return for the mechanical work of a rice shed, and that he was in charge of the work of a rice shed.

Article 89 of the Income Tax Act

2011Guhap3030 Revocation of Disposition of Imposing capital gains tax

KimA

The Director of Incheon Tax Office

January 12, 2012

February 23, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2005 against the Plaintiff on November 1, 2010 is revoked.

1. Details of the disposition;

가. 원고는 1985. 2. 4. 인천 중구 OO동 000 답 955㎡，같은 동 000 답 456㎡，같

It completed the registration of ownership transfer based on sale with respect to the previous farmland of 2,228 square meters (hereinafter referred to as "the previous farmland of this case") before 000.

B. On December 23, 2005, the Plaintiff transferred the previous farmland to the Incheon Metropolitan City Urban Development Corporation due to a consultation on the land for public use, and completed the registration of ownership transfer on December 26, 2005.

C. On February 6, 2006, the Plaintiff completed the registration of transfer of ownership on the ground of sale with respect to the land of 000 Doz. 1,385 m2,582 m2 (hereinafter “the substitute land in this case”) such as the O00 m2,585 m2 (hereinafter “O2,00 m2”).

D. On February 28, 2006, the Plaintiff applied Article 89 of the Old Income Tax Act (amended by Act No. 7873, Dec. 31, 2005; hereinafter the same) that is the provision on capital gains tax reduction or exemption for farmland substitute land when filing a preliminary return on the transfer income tax following the transfer of the previous farmland in this case.

E. On November 1, 2010, the Defendant rendered the instant disposition imposing KRW 000 of the transfer income tax for the year 2005 on the Plaintiff, deeming that the Plaintiff did not meet the requirements for reduction and exemption of the transfer income tax due to substitute farmland on the ground that he resided in the seat of the instant substitute farmland and did not do so.

F. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on December 1, 2010, but was dismissed on May 23, 201.

[Based on recognition] The descriptions of Gap, 5, 6, and 7, and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff acquired the previous farmland of this case and directly cultivated the previous farmland of this case for not less than three years in the location of the previous farmland (including adjoining land, hereinafter the same shall apply) for more than three years, and the previous farmland of this case was acquired within one year from the date of transfer of the previous farmland and continuously cultivated the substitute farmland of this case while residing directly in the location of the substitute farmland of this case. Thus, the income from the transfer of the previous farmland of this case is subject to reduction of capital gains tax due to substitute land of the own farmland of Article 89 of the former Income Tax Act, but is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Relevant legal principles

옛 소득세법 제89조，옛 소득세법 시행령(2005.12.31. 대통령령 제19254호로 개정되기 전의 것) 제153조 제2항에 따르면， 3년 이상 종전의 농지소재지에 거주하면서 경작한 자가 종전의 농지의 양도일부터 1년 내에 다른 농지를 취득하여 3년 이상 새로운 농지소재지에 거주하면서 경작한 경우로서 새로 취득하는 농지의 면적이 양도하는 농지의 면적 이상이거나 그 가액이 양도하는 농지의 가액의 2분의 1 이상인 경우"에는 농지의 대토로 인하여 발생하는 양도소득에 대하여는 과세하지 않는다. 옛 소득세법상 농지의 대토에 대하여 양도소득세를 감면하는 규정의 취지는 농지의 자유로운 대체를 보장함으로써 자경 농민을 보호하고 농업을 장려하기 위한 것이 어서，그 감면의 대상은 자경 농가가 취득하여 경작하던 농지를 경작상의 필요로 대토하기 위한 경우로 제한하여 해석하여야 한다. 따라서 농지의 대토로 인한 양도소득세 감면요건은，① 종전토지 및 새로 취득 하는 토지가 농지여야 하고，② 3년 이상 종전의 농지소재지에 거주하면서 직접 경작 하고， 이에 더하여 3년 이상 새로운 농지소재지에 거주하면서 직접 경작하여야 하며， ③ 종전 토지의 양도일로부터 1년 이내에 그 거주와 경작을 시작하여야 하고，④ 종전 토지의 양도일과 새로 취득하는 토지의 취득일 사이의 기간이 1년 이내이어야 하며，⑤ 새로 취득하는 농지의 면적이 양도하는 농지의 면적 이상이거나 그 가액이 양도하는 농지의 가액의 1/2 이상이어야 한다. 또한 여기서 농지를 '직접 경작'한다고 함은 거주자가 그 소유 농지에서 농작물의 경작 또는 다년성 식물의 재배에 상시 종사(농업인과 농지의 장소적，시간적 근접) 하거나 적어도 농작업의 2분의 1 이상을 자기의 노동력(농업인 자신의 직접적인 노동력 투입)에 의하여 경작 또는 재배하는 것을 뜻한다고 봄이 상당하다. 그리고 원고가 경작상의 필요에 의한 농지의 대토로 인하여 발생하는 소득에 대하여 양도소득세를 감면받기 위해서는 먼저 그 주장의 위 ②의 요건 사실을 모두 증명 하여야 한다(대법원 1993. 7. 13. 선고 92누11893 판결 등 참조).

(2) Review of this case

In this case, we examine whether the Plaintiff was proved to have cultivated the farmland of this case directly for not less than 3 years, which is the requirements of the above ②. The evidence that seems consistent with this, there are some testimonys of Gap 10 through 15, 22, and witnesses, but these evidences alone are insufficient to recognize that the Plaintiff had cultivated the farmland of this case directly, and there is no other evidence to acknowledge this. The Plaintiff’s above assertion is rejected.

① In light of the location of the farmland acquired by the Plaintiff, the developments leading up to the acquisition of farmland, and profits from the purchase of farmland, the Plaintiff’s investment purpose is not excluded, and there is a need to review the requirements of “self-sufficiency” relatively strict according to the purport of the law for the protection of self-employed farmers.

② On November 21, 1989, the Plaintiff established GG Electric Co., Ltd., 000, Nam-gu, Incheon, Seoul, and has been in office as a representative director until now, and manages all the above company’s management (Evidence B). The annual revenue amount of the above company reaches about KRW 10.4 billion in 2003, and KRW 19 billion in year in 2010 as the annual revenue amount increased (Evidence B No. 4-1 through 8).

③ Kim HH, a farming shed near the land of this case, made a statement that the Plaintiff had previously acquired the land of this case and had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had

④ In light of the fact that there was an outflow in the substitute farmland of this case, and the plaintiff is operating GG electricity of this case, the plaintiff must move from the plaintiff's residence to the substitute farmland of this case for about one hour, and the area of the substitute farmland of this case is about 4,000 square meters, it seems difficult for the plaintiff to directly cultivate the substitute farmland of this case, and the plaintiff did not have any specific assertion and proof about it.

⑤ rice farmers are under way in the order of ? ? math ? ? in-house ? ? in-water ? disease cycle, agricultural pest control ? agricultural pest control ? agricultural products using machinery, such as tweet ?, and tweet ? agricultural products, agricultural products, agricultural products, agricultural products, etc. need human descendants, but the remaining works need most of them. However, with respect to all operations which can be operated by machinery, the Plaintiff has given and received money from her own land in this case (the testimony of witness II) and has been entrusted with it (the testimony of witness II). In addition, in light of the fact that the water atmosphere is well equipped with the facility and the special technology is needed, even if the Plaintiff directly worked on the land in this case, the part is not less than 1/2 of the entire farming work.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.