2013west0829 (25 April 25, 2013)

The plaintiff must prove that direct cultivation has to be conducted.

상시 종사하는 다른 직업을 가진 원고가 틈틈이 짬을 내어 이 사건 토지에서 채소경작 등을 하였다는 것인데, 이와 같은 형태로 8년 이상 실질적인 자경을 하였다는 사실을 경작 도중 찍은 사진이나 확인서 기재만으로는 인정하기에 부족함

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

2013Gudan11997 Revocation of Disposition of Imposing capital gains tax

KimA

Head of Guro Tax Office

September 27, 2013

October 25, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On August 8, 2012, the judgment that the defendant revoked the imposition of the capital gains tax of the plaintiff on August 8, 2012 by the OOOO(including additional OOOO).

1. Details of the disposition;

A. On October 23, 2002, the Plaintiff acquired an OO-dong 205-6 m2,025 m2,025 m2,000 O-dong O-dong O-dong O-dong O-dong 205-28 m2 (hereinafter “instant land”) on October 21, 2010, transferred the instant land to OB and applied Article 69 of the Restriction of Special Taxation Act for reduction or exemption of capital gains tax.

B. On the other hand, the Defendant conducted an on-site investigation with respect to the Plaintiff, and determined that the instant land does not meet the requirements under Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 10406, Dec. 27, 2010; hereinafter the same) and falls under the non-business land under Article 104-3 of the Income Tax Act, and imposed capital gains tax OOO on the Plaintiff on August 8, 2012.

C. The Plaintiff filed an objection with the Seoul Regional Tax Office, and the head of the Seoul Regional Tax Office excluded the reduction or exemption due to the Plaintiff’s lack of deeming the Plaintiff to have engaged in crop cultivation for not less than eight years on the instant land, but it appears that the Plaintiff cultivated for not less than three years immediately before the date of transfer. As such, the Seoul Regional Tax Office determined that the exclusion of the special deduction for long-term possession from the land for non-business use was erroneous, and the Defendant reduced the tax amount imposed on November 15, 2012 to OOO (including additional tax OOOs and additional tax OOs for non-business use) (hereinafter “instant disposition”).

D. On February 1, 2013, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but was dismissed on April 25, 2013.

Facts that there is no dispute about recognition, each entry of Gap4 and 5 evidence, and the purport of the whole pleadings.

2. The plaintiff's assertion

Although the Defendant acknowledged the fact that the Plaintiff directly cultivated the instant land from 2006, the Defendant asserted that the Plaintiff did not cultivate the instant land from the time of its acquisition until 2004. However, the Plaintiff submitted a photograph to cultivate the instant land in 2004, as well as the Plaintiff obtained land transaction permission for the purpose of small cultivation at the time of the Plaintiff’s acquisition of the instant land, and thus, if the Plaintiff did not cultivate the instant land on the land, the head of Seocheon-si shall impose a fine for negligence pursuant to Article 33-2(2)6 of the Act on the Utilization and Management of the National Territory, but there was no such disposition. Accordingly, even if this fact is true, the Plaintiff could have known that he directly cultivated the instant land for at least eight years, and thus, the instant disposition was unlawful on a different premise.

3. Whether the disposition is lawful;

A. Relevant statutes

It is as shown in the attached Form.

B. Determination

The legislative purpose of Article 69 of the former Restriction of Special Taxation Act is to reduce the tax burden due to the transfer of farmland as part of the land farming policy, and is to activate agriculture and rural communities by reducing the tax burden of self-employed farmers (see, e.g., Constitutional Court Order 2003HunBa2, Nov. 27, 2003). According to Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 23590, Feb. 2, 2012; hereinafter the same), the term "direct farming" refers to the cultivation of crops or perennial farming with their own labor, or the cultivation or cultivation of more than half of the farming work with their own labor, and such self-cultivation must be proved by the plaintiff.

The key issue of the instant case is whether the Plaintiff directly cultivated the instant land for at least eight years after the Plaintiff acquired the instant land and in particular before 2006. In full view of the following circumstances, it is insufficient to recognize that the Plaintiff was engaged in the cultivation of crops or the growing of perennial plants for at least eight years in the instant farmland, or that the Plaintiff was engaged in the cultivation of crops or the growing of perennial plants with his own labor for at least half of the farming work, and there is no evidence to acknowledge otherwise.

1) 원고는 OO시 OO구 OO동 103-4 CC상가에서 1994. 9. 9.부터 DD상사(연마재 도소매업)를 운영하면서 아래와 같은 매출액 신고를 하였는바, 위와 같이 상시 종사하는 다른 직업을 가진 원고가 틈틈이 짬을 내어 이 사건 토지에서 채소경작 등을 하였다는 것인데, 이와 같은 형태로 8년 이상 실질적인 자경을 하였다는 사실을 원고가 2004년에 이 사건 토지를 경작하는 도중 촬영하였다며 제출한 사진(갑1호증의 1 내지 5)의 영상이나 주변인인 최EE의 확인서 기재만으로는 인정하기에 부족하다.

(unit:,000 won)

Year

204

205

206

2007

208

209

2010

Revenue amount

OOO

OOO

OOO

OOO

OOO

OOO

OOO

2) The Plaintiff did not have objective evidence to support the purchase of seeds, agricultural chemicals, fertilizers, fertilizers, farming equipment, and farming materials, etc., or sales of agricultural products cultivated by the Plaintiff. In this regard, it is insufficient to establish objective evidence to prove that the Plaintiff submitted during the pleading process of the instant case. Meanwhile, at the time of filing an application for capital gains tax reduction and exemption, the Plaintiff directly prepared and submitted a receipt by himself/herself while submitting a simplified receipt as evidence.

3) The Plaintiff acquired the farmland ledger only on June 20, 2006, and there seems to be no fact that the Plaintiff joined the agricultural cooperative, the agricultural cooperative, or the agricultural cooperative or prepared a farming log. Moreover, the electricity used for agriculture applied for around June 2006, and it appears that a vinyl was installed around January 2007, and eventually, it does not constitute a ground for recognizing that the Plaintiff was a farmer before 2006.

4) It cannot be deemed that the Plaintiff cultivated the instant land for at least eight years on the ground that there was no fine for negligence due to a violation of the purpose of using the land after obtaining land transaction permission from the head of Seocheon-si Office for the purpose of farming.

4. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.