National High Court Decision 2008J 2184 (2008.03)

Criteria for determining whether farmland has been cultivated

Examining whether or not farmland substitute land has been self-confiscated, it is reasonable to view that the Plaintiff was not self-confiscated for three or more years prior to the transfer of farmland on the ground that: (a) the Plaintiff gave birth to each of five years prior to the acquisition of farmland and two years prior to the acquisition of farmland; (b) the Plaintiff prepared a written confirmation that farmland was leased to another person in

The contents of the decision shall be the same as attached.

Article 70 (Reduction or Exemption of Transfer Tax on Substitute Land for Farmland)

Article 67 (Requirements for Reduction or Exemption of Transfer Tax by Substitute Land for Farmland)

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 183,550,490 against the plaintiff on March 3, 2008 (hereinafter referred to as "the disposition of imposition of this case") is revoked (the " March 15, 2008 stated in the complaint seems to be a clerical error)," and the reasons.

1. Details of the instant disposition;

A. On March 19, 2002, the Plaintiff completed the registration of ownership transfer for the reason of the sale on the 16th day of the same month with respect to the land of this case on March 19, 2002 (hereinafter “the farmland of this case”), and thereafter, on the ground of a consultation on the land of this case on November 10, 2005, the registration of ownership transfer was made under the name of the Korea National Housing Corporation on the ground of the acquisition of the land of this case on the 3th day of the same month (hereinafter “instant consultation”). However, after the registration of ownership transfer was made under the name of the Korea National Housing Corporation, the Plaintiff completed the registration of ownership transfer for the reason of sale on December 29, 2005 on the land of this case on the 20th day of the same month.

C. On June 30, 2006, the Plaintiff reported the transfer income tax on the transfer income accruing from the transfer of the farmland of this case to the Defendant to the effect that it is exempt from taxation as the "income accruing from substitute land for farmland under Article 89 subparagraph 4 of the Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005). However, the Defendant issued the instant disposition on March 3, 2008 on the ground that the Plaintiff did not directly cultivate the farmland of this case and the newly acquired farmland." The Plaintiff appealed against the instant disposition on June 10, 2008, but the Tax Tribunal dismissed the Plaintiff's request on September 3, 2008.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, Eul evidence 5-1, 2, Eul evidence 6-2, Eul evidence 9-1, 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff purchased the farmland of this case on March 14, 2001 and cultivated the farmland of this case directly with the help of Jinjin-gu from around that time, and the defendant issued the disposition of this case on the ground that the plaintiff did not cultivate the farmland of this case on the ground that the plaintiff did not directly cultivate the farmland of this case, so the disposition of this case is unlawful.

B. Determination

(1) The purport of the provision of non-taxation on the transfer income tax is to protect farmers through free permission and guarantee of farmland, and thus, it is non-taxation on the transfer income tax in the event that the farmland acquired and sold to ○○○ Government is for cultivation necessity (see, e.g., Supreme Court Decision 2002Du5924, Sept. 5, 2003), and Article 153(2)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254, Dec. 31, 2005; hereinafter referred to as the “Enforcement Decree”), and the Plaintiff’s application for non-taxation on the above 6th anniversary of the fact that 6th anniversary of the acquisition of the farmland was made by 00, the Plaintiff’s application for non-taxation for non-taxation on the above 6th anniversary of the acquisition of the farmland was not accepted, and the Plaintiff’s application for non-taxation on the 6th anniversary of the acquisition of the farmland as evidence No. 1 to the Plaintiff’s. 2 and 7 evidence No.

3. Conclusion

Therefore, it is not necessary to further examine whether the Plaintiff satisfies the remaining requirements for non-taxation of capital gains tax under Article 153(2) of the Enforcement Decree, and the capital gains tax from the transfer of the farmland of this case is not subject to non-taxation of capital gains tax. Thus, the Plaintiff’s claim of this case is dismissed without any justifiable reason, and it