early 2010 Heavy1402 (24. 2010.06)

The disposition imposed on the farmland that is not directly cultivated among the requirements for reduction or exemption of capital gains tax due to farmland substitute land is legitimate.

It is insufficient to recognize that the requirements for self-reliance on farmland have been satisfied, such as the purchase details of agricultural materials, such as fertilizers and agrochemicals, and the fact that the former farmland does not submit objective evidence on the sales details of products produced in the previous farmland.

1. The plaintiff's claim is dismissed.

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

The imposition of capital gains tax of 89,001,440 won on the Plaintiff on September 1, 2009 (the date of notification as stated in No. 2-4 of the evidence No. 2) shall be revoked.

1. Details of disposition;

A. On February 7, 1998, the Plaintiff purchased 605 square meters prior to 100 square meters prior to 00 ○○-dong, 100 square meters prior to the same 101 square meters prior to the same 101 square meters, and 102-1 square meters prior to the same 102-1 square meters (hereinafter collectively referred to as “previous farmland”), and completed the registration of ownership transfer on the 17th of the same month.

B. On May 6, 2004, the Plaintiff transferred the previous farmland to the Korea Land and Housing Corporation on the ground of a consultation on the purchase of land for public use, and completed the registration of ownership transfer on the 11st of the same month.

C. On March 28, 2005, the Plaintiff acquired 1,375 square meters in △△△△-1, 284-1, 284-2, 853 square meters in the same Ri, and 293-2, 1,124 square meters in total (hereinafter “alternative farmland”), and completed the registration of ownership transfer in its name on May 11, 2005.

D. The Plaintiff did not report the transfer income tax on the previous farmland on the ground that the acquisition of substitute farmland meets the requirements for reduction or exemption of the transfer income tax as substitute land for farmland.

E. On September 1, 2009, the Defendant notified the Plaintiff of KRW 89,001,440 of the transfer income tax reverted to September 1, 2004 (hereinafter “instant disposition”) by deeming that the Plaintiff did not directly cultivate the entire farmland due to substitute land for farmland.

F. On December 7, 2009, the Plaintiff appealed against the instant disposition, but was dismissed. In other words, on April 7, 2010, the Plaintiff filed an appeal with the Tax Tribunal, but was dismissed on June 24, 2010.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 13, Eul evidence Nos. 1, 2, and 5 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff acquired previous farmland and resided in the previous farmland location (including adjoining land; hereinafter the same shall apply) for not less than three years, and acquired and cultivated substitute farmland within one year from the date of transfer of previous farmland, and thus, the income from the transfer of previous farmland is subject to reduction or exemption of capital gains tax due to the substitute farmland under Article 70 of the Restriction of Special Taxation Act, notwithstanding the fact that the income from the transfer of previous farmland is subject to reduction or exemption of capital gains tax due to substitute farmland under Article 70

B. Key statutes

Attached Form is as shown in the attached Form.

C. Determination

1) According to Article 70(1) of the Restriction of Special Taxation Act (amended by Act No. 921 of Jan. 1, 2010) and Article 67(1), (2), and (3)1 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 20620 of Feb. 22, 2008), where a person who directly cultivated while residing in the former location of farmland for not less than three years has acquired another farmland within one year from the date of transfer and resided in a new location of farmland for not less than three years, and where the area of new acquired farmland is 1/2 of the area of farmland to be transferred or a third or more of the value of transferred farmland is 1/100 or more of the value of the farmland to be transferred, the tax amount equivalent to 10/100 of the capital gains tax on the capital gains accruing from substitute farmland shall be reduced or exempted.

2) The purport of the provision that reduces capital gains tax on the substitute land of farmland under the Restriction of Special Taxation Act is to protect a self-employed farmer and encourage agriculture by guaranteeing free substitution of farmland. Therefore, the subject of reduction or exemption shall be construed to limit the cases where the farmland acquired by the self-employed farmer and cultivated is to be substituted for the purpose of cultivation.

Therefore, the requirements for reduction of capital gains tax due to substitute land for farmland should be farmland. ① The previous land and new land should be cultivated directly while residing in the previous land location for more than 23 years and residing in the new land location for more than 3 years. ③ The residence and cultivation should begin within 1 year from the date of transfer of the previous land. ④ The period between the transfer date of the previous land and the acquisition date of the newly acquired land should be within 1 year, and ④ the area of newly acquired farmland should be more than 1/2 of the area of farmland and the value of the transferred farmland should be more than 1/3 of the value of the transferred farmland

In addition, the term "direct cultivation" means that a resident engages in the cultivation of the crops or the growing of perennial plants in his own farmland at all times (in the location and location of the farmer and farmland, in the vicinity of time) or who cultivates or cultivates not less than half of the farming work with his own labor (in the direct labor force of the farmer).

In addition, in order for the Plaintiff to have the capital gains tax reduced or exempted on income generated from substitute land for farmland for cultivation, the Plaintiff’s assertion that the income tax should first be proved (see, e.g., Supreme Court Decision 92Nu11893, Jul. 13, 1993).

3) In this case, we examine whether the Plaintiff had been proved to have cultivated the previous farmland directly for three or more years while residing in the previous location of the farmland.

A) Facts consistent with or favorable to the Plaintiff’s assertion

According to the statements and images of Gap evidence 3, 4, 7, 11, 16, 17, 18, 22 and 31 (including each number), and the testimony of Park Jong-A, the following facts, etc. may be acknowledged:

① In the farmland ledger, the Plaintiff is written as the Plaintiff’s own farmland. ② The Plaintiff resided in the same city, Gun, and job placement as the previous farmland location for at least three years during the previous farmland ownership period. ③ The Plaintiff joined ○○ Agricultural Cooperatives as an associate member (at January 14, 2003) and an associate member (at February 14, 2007) and an associate member (at the time of 2007).NowBB prepared and certified a written statement to the effect that “the Plaintiff has cultivated the previous farmland directly with the Plaintiff’s family members, and that the Plaintiff had a son’s family members and a son with this BB.” (Now) written a written confirmation to the effect that “the Plaintiff had the previous farmland cultivated by the Plaintiff.”

B) Facts that do not comply with the Plaintiff’s assertion or disadvantageous

However, in full view of the evidence mentioned above, Gap evidence Nos. 19, Eul evidence No. 3, and witness Park Jong-A's partial testimony, the following facts are also acknowledged.

① Around March 1998, the Plaintiff owned farmland of a total of 5,207 square meters. ② The Plaintiff moved to ○○○○ Dong, 102 on November 1, 2001, but the said resident registration became ex officio on April 26, 2002. ③ The Plaintiff was working in Maridong from 1991 to 2010, and the annual salary of 2008 amounted to 41,53,000 won. ④ The Plaintiff directly cultivated farmland of a total of 5,207 square meters. ⑤ The Plaintiff prepared the farmland ledger around January 7, 2003, when four years have elapsed since the former acquisition, and the Plaintiff purchased farmland of the previous agricultural cooperative around 15, 203.

(c) small decision;

In addition to these facts, each of the above evidences and Gap evidence Nos. 20, 21, 32, 33, and 34 (including each number), and each of the above evidences and images cannot be easily admitted as evidence for direct cultivation of the previous farmland for at least three years (a half or more of the work for farming) by the plaintiff. The above facts alone are insufficient to recognize that the plaintiff who has the burden of proof alone proves all of the above requirements (a three or more years' own cultivation), and there is no other evidence to prove otherwise. Accordingly, the plaintiff's above assertion on the premise that the above requirements are satisfied is not sufficient to further examine the remaining parts, and the disposition of this case is legitimate.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.