Seoul Administrative Court-2017-Gu Group-1332 ( October 14, 2017),

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

It can not be inferred that the land of this case was written to another person only because there were many small farmers in the vicinity. It is deemed that the plaintiff's simple receipt, confirmation certificate of neighboring residents, and testimony of neighboring farmers presented by the plaintiff's self-defense is not reasonable, so it is deemed that the plaintiff made a self-defense for 8 years.

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

2017Nu59309 Revocation of Disposition of Imposing capital gains tax

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○ Head of tax office

Seoul Administrative Court 2017Gudan1332 ( October 14, 2017)

January 17, 2018

February 14, 2018

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 96,238,530 (including additional taxes) and special rural development tax of KRW 3,306,380 for the year 2015 against the Plaintiff on January 4, 2016 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The court's explanation on this part is identical to the statement of the court of first instance except for the modification of the pertinent part of the judgment of the court of first instance as follows. Thus, this part of the judgment is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

On November 23, 198, 198, 1/2 shares among 2,132 square meters of "2,132 square meters of "(hereinafter "the land in this case") was acquired on November 23, 198," and "the land in this case was acquired on November 23, 198, 1,066 square meters of a specific part of 2,132 square meters of land (hereinafter "the land in this case"), but the ownership transfer registration was completed with respect to 1/2 of 2,132 square meters of land for convenience because it was not divided."

○ In addition to the right side of the second five pages of "before partial amendment," "the former Restriction of Special Taxation Act", and "the former Restriction of Special Taxation Act".

○ The Second Twelve Evidence Nos. 1 and 2 of the 13th page “A” shall be read as “Evidence Nos. 1, 2, 6, and 8 of the A,” and “each entry” of the same kind shall be added to “the testimony of the witness of the first instance trial”.

2. Whether the instant disposition is lawful

A. Summary of the parties' assertion

1) The plaintiff's assertion

Since the Plaintiff resided in the vicinity of the instant land and continued to grow for 20 years from around 1989 to 2015, it constitutes an exemption from capital gains tax pursuant to Article 69 of the former Restriction of Special Taxation Act. Therefore, the Defendant’s disposition of this case is unlawful.

2) The defendant's assertion

The Plaintiff, a taxpayer, bears the burden of proving the self-sufficiency of farmland, which is a requirement for reduction and exemption of capital gains tax, and it is insufficient to view that the Plaintiff re-satisfing the instant land even after comprehensively taking account of all the evidence submitted by the Plaintiff in this case. Moreover, the Plaintiff continued to have been engaged in cultivating crops on a regular basis in the instant land, given that even at the time of the transfer of the instant land, it is difficult to deem that the Plaintiff had engaged in growing crops on a regular basis. Even if the Plaintiff’s self-satisfing of the instant land, the period of self-satisfing the Plaintiff’s business income and total amount of salaries excluded from the period of self-satfing

(b) Related statutes;

The reason why the court should explain this part is also the addition of the attached Form of the judgment of the court of first instance to the attached Form of the judgment of the court of first instance, and the "Additional Part of the related Acts and subordinate statutes" to the attached Form of the judgment of the court of first instance shall be added to the "Additional Part of the related Acts and subordinate statutes of this court", and the 5th two parallels "F 14 December 2015, 2015" to the "Presidential Decree No. 26316, Jun. 15, 2015" to the "Presidential Decree No. 26959, Feb. 5, 2016," respectively, shall be cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act, the main sentence of Article 420 of the Civil Procedure Act.

C. The judgment of this Court

1) Relevant legal principles

In order to have the capital gains tax reduced or exempted on self-arable farmland pursuant to Article 69(1) of the former Restriction of Special Taxation Act and Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26959, Feb. 5, 2016; hereinafter the same), it is required that the resident at the seat of the farmland engages in cultivating or growing crops or growing perennial plants for at least eight years on his/her own farmland or growing or growing or growing them with his/her own labor for at least half of farming work. Here, “the farming or growing of at least half of farming work with his/her own labor” can be abused as a means of tax evasion (see, e.g., Supreme Court Decision 2012Du19700, Dec. 27, 2012); the resident at the seat of the farmland at issue constitutes a person who concurrently engages in other occupation, but it cannot be deemed as an indirect reduction or exemption of capital gains tax (see, e.g., Supreme Court Decision 2009Du19484.

Meanwhile, Article 66 (4) of the former Enforcement Decree of the Restriction of Special Taxation Act provides that "land prescribed by Presidential Decree" means land cultivated by the plaintiff for at least eight years from the time of acquisition until the time of transfer, excluding land falling under any of the following subparagraphs." Article 66 (14) of the former Enforcement Decree of the Restriction of Special Taxation Act provides that "where the total amount of business income of the relevant decedent or resident under Article 19 (2) of the Income Tax Act and the total amount of gross income under Article 20 (2) of the same Act are 37 million won or more during the period of cultivation, the period shall be excluded from the period cultivated by the decedent or resident." Article 16 (4) of the former Enforcement Decree of the Restriction of Special Taxation Act provides that "The above provision of Article 16 (2) of the former Enforcement Decree of the Restriction of Special Taxation Act ("the Addenda of the Restriction of Special Taxation Act"), which was newly established by Act No. 2521, Feb. 21, 2014."

(ii) the facts of recognition

① The Plaintiff: (a) was different from the Plaintiff’s her mother and father’s sonology in rural communities; (b) first moved into the Gamba-dong, Gangdong-gu, Seoul on October 22, 1987 (current administrative district change to be the Jamba-dong); (c) from May 15, 197 to February 19, 198 and on two occasions from January 5, 1999 to January 15, 199; (d) continued to reside in the Gamba-dong, Songpa-gu, Seoul on January 15, 1999 to January 15, 202; and (e) filed the move-in report in a straight line from the Plaintiff’s previous residence to Samsung 00-00, which is the 20k-dong, within the 20-dong, Samsungdong-dong, the 20-dong residence of the Plaintiff.

② As to the instant land, the farmland ledger was created on August 5, 2004 with the Plaintiff as a farmer.

③ The witness of the first instance trial stated to the effect that the Plaintiff directly cultivated various agricultural crops, such as gambling, pots, spawn, spawn, drilling, etc., according to seasons, from the time of acquisition of the instant land.

④ He prepared a certificate of cultivation to the effect that the Plaintiff had cultivated the vegetables, rooms, etc. directly around the instant land, both ABB, and AE, which had been farming houses around the instant land.

⑤ 원고는 농촌에서 자라서 기본적인 농사짓기는 어느 정도 알 것으로 보이고, 이 법원의 증인 방CC, 김DD도 자신들이 경작하는 토지 인근에서 원고가 이 사건 토지를 취득한 이듬해인 1989년경부터 계속하여 감자, 옥수수, 고추, 토마토 등을 심었고 가을에는 무, 배추를 심었으며, 상추와 깻잎을 제외한 농작물은 비닐로 땅을 덮고, 모종을 심고 나면 일주일에 두세 번만으로 충분히 재배할 수 있다고 진술하였다. 또한,방CC, 김DD은 원고가 농사지은 감자 2박스씩을 선물로 받기도 하였을 뿐만 아니라, 원고는 밭갈이 등 일부 작업 시에 다른 농민의 도움을 받기는 하였으나 거의 대부분 혼자 농사를 지었는데 10년 전 비닐하우스를 설치하여 농사를 짓다가 이후 비닐하우스를 철거하고 매실나무를 심었다는 취지로 진술하였다.

6) The Plaintiff is also in custody of simplified tax invoices, etc. received after purchasing seeds, such as cathers, sludge, drilling, earthtoma, and bat, and fertilizers, hos, straws, hacks, hacks, phos, support stands, vinyls, and universal cover prior to around 200.

7) However, from 2004 to 2011, the Plaintiff was in office as a non-standing auditor of the FFF speech affiliate, and during that period, the sum of the Plaintiff’s business income from real estate rental and the above earned income was at least 37 million won.

Facts that there is no dispute over the basis of recognition, Gap evidence Nos. 7, 9, 11, 16 to 19, 22, 23, 32 to 38 (including each number in the case of additional numbers), Eul evidence Nos. 6, and the witness KimD of the first instance court and this court, witness KimD of the witness of this court and this court, each testimony of the court and the purport of the whole pleadings.

3) Determination

The Plaintiff’s total amount of business income and total amount of salary from 2004 to 2011 was above 37 million won, and in light of the aforementioned legal principles, as long as the instant land was transferred on June 29, 2015 after the enforcement date of Article 66(14) of the former Enforcement Decree of the Restriction of Special Taxation Act, the provision is applied to the transfer of the instant land pursuant to Articles 1 and 2(3) of the Addenda of the instant case, and the period from 2004 to 2011 is excluded from the period during which the Plaintiff cultivated the instant land. Thus, it is problematic whether the Plaintiff was engaged in ordinary cultivation of crops in the instant land for at least eight years from 204 to 2011, except for the period from 2015 to 2011.

In light of the following circumstances: (a) unlike the Plaintiff’s assertion, it cannot be found that the instant land was leased to or actually cultivated by another person; (b) as long as the Plaintiff did not appear to have been 1/6 years from 10 of the Enforcement Decree of the Restriction of Special Taxation Act; (c) it is confirmed that the Plaintiff continued to own the instant land by mutual consent of neighboring farmers until the time of transfer of the instant land; (d) the characteristics of crops cultivated by the Plaintiff and the method of farming (not limited to those of full-time farming for their own life) and the fact that the Plaintiff had no longer than 1/6 years since 6 years since 199, it is reasonable to view that the Plaintiff had no longer than 1/6 years since 6 years of transfer of the instant land to 1/6 years; and (e) in view of the distance between the land and the Plaintiff’s 1/6 years of production of the instant land from 20 years of age, it is difficult to view that the Plaintiff continued to use the instant land for the purpose of growing the Plaintiff’s own land and its own land.

D. Sub-committee

Therefore, the instant disposition based on the premise that the Plaintiff did not recognize the fact that the Plaintiff cultivated crops for not less than 8 years by using not less than 1/2 of the farming work on the instant land as its own labor force is eventually unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted for the reasons, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit.