The burden of proof for direct cultivation is on the claimant.

Any person who asserts self-defense shall be engaged in the cultivation of crops, etc. on his own farmland or shall prove that not less than half of the farming works have been cultivated or cultivated with his own labor.

Article 69 of the former Restriction of Special Taxation Act

2018-Gu Partnership-1253 Revocation of Disposition of Imposing capital gains tax, etc.

AA

o Head of the tax office

November 6, 2018

December 11, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 104,323,730 (additional Tax) and special rural development tax of KRW 2,933,640 on July 13, 2017 against the Plaintiff on July 13, 2017 shall be revoked.

1. Details of the disposition;

A. As the Plaintiff was incorporated into a business ***, the Plaintiff entered into a sales contract with the head of November 3, 2015 that sells the instant land to KRW 446,594,000 as the price was paid, and completed the registration of ownership transfer to the head of November 4, 2015.

B. On January 27, 2016, the Plaintiff filed a report on capital gains tax applying the reduction or exemption of capital gains tax on self-Cultivating farmland pursuant to Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015; hereinafter “former Restriction of Special Taxation Act”).

C. On July 13, 2017, the Defendant notified the Plaintiff of capital gains tax of KRW 104,323,730 (including additional tax) and special rural development tax of KRW 2,933,640 (hereinafter referred to as “instant disposition”) by excluding capital gains tax reduction or exemption on the ground that “the Plaintiff was planted with fung trees in the instant land, but cannot be deemed that the Plaintiff cultivated them for at least eight years.”

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 and 2 (including each number), the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

Around November 4, 2015, the Plaintiff planted ○○ tree, an ornamental tree on the instant land and cultivated it until the time of sale on November 4, 2015. As such, at the time of the transfer of the instant land, the Plaintiff voluntarily around eight years thereafter. Therefore, the capital gains tax on the transfer of the instant land ought to be reduced or exempted.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In order to have the capital gains tax reduced or exempted pursuant to Article 69(1) of the former Restriction of Special Taxation Act, a resident who resides in the farmland at the seat of the farmland must cultivate the farmland directly for not less than eight years, and the transferor who asserts the transfer of the farmland must actively prove the fact (see, e.g., Supreme Court Decision 90Nu6293, Apr. 23, 191). Meanwhile, Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act provides that “direct cultivation” under Article 69(1) of the former Enforcement Decree of the Restriction of Special Taxation Act refers to a resident who engages in the cultivation of the crops or perennial plants in his/her own farmland at all times or who cultivates or cultivates them with his/her own labor at least half

2) There is no dispute between the parties that the Plaintiff transplanted ○○ tree to the instant land around 2004. However, the evidence, such as the farmland ledger, submitted by the Plaintiff alone, cannot be deemed as engaging in full-time work to cultivate ○○ tree planted on the instant land or cultivating or cultivating 1/2 or more of the farming work with its own labor, and there is no other evidence to acknowledge otherwise.

3) Rather, Gap evidence Nos. 5 and Eul evidence Nos. 2 through 6 (including each number), the party’s newspaper, and the following facts and circumstances, which can be known by the overall purport of oral argument, i.e., the whole purport of the oral argument. ① ○○○ tree planted on the land of this case, which was originally owned by the plaintiff, was planted on the land of this case 767 square meters prior to the original land owned by the plaintiff, but the land of this case *** the State’s transfer registration was completed on April 25, 2013 due to the acquisition of public land as incorporated into the business, and the plaintiff received a compensation for interference with this, and then planted the above ○○ tree on the land of this case on around 204; ② the plaintiff was engaged in the ○○○○○○ upon working on the land of this case from around 1994 to around 207, and the plaintiff cannot be deemed to have been engaged in growing ○○○○ or selling ○○○.

4) Therefore, the Plaintiff’s assertion is rejected.

3. Conclusion

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