Incheon District Court 2008Gudan2078 (No. 21, 2009)

Whether the transferor, who is a local public official, has reeded farmland for at least eight years;

Since the transferor works as a local public official in the location of farmland and owns farmland of at least 20,000 square meters in addition to the farmland transferred, it is difficult to deem that he/she is engaged in cultivating crops or engaged in farming work at least 1/2 of his/her own labor.

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

1. The plaintiff's appeal is all dismissed.

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

The judgment of the first instance is revoked. The defendant's disposition of imposition of capital gains tax of KRW 191,831,270 against the plaintiff on April 1, 2008 and the defendant's disposition of imposition of capital gains tax of KRW 92634740 against the plaintiff on June 1, 2008 is revoked.

1. Details of the disposition;

A. The plaintiff acquired the land of this case on November 25, 1998 and transferred the land of this case to leB on November 17, 2007. The plaintiff acquired the land of this case on December 30, 1995 and transferred the land of this case to E EE-Gu * 486-1 5,157 square meters (hereinafter "the land of this case") to leB on December 30, 1995, and acquired the land of this case on November 30, 2006, and transferred the land of this case to CC Hapo Co., Ltd. on November 30, 2006.

C. On April 1, 2008, the Defendant deemed that the Plaintiff did not directly cultivate the land Nos. 1 and 2 for not less than eight years, and issued a disposition of imposition of capital gains tax of KRW 191,831,270 for the year 2007 following the transfer of the land No. 1 (hereinafter “instant disposition”) to the Plaintiff, and issued a disposition of imposition of capital gains tax of KRW 92,634,740 for the year 2006 following the transfer of the land No. 2 of this case (hereinafter “instant disposition”) on June 1, 2008.

Facts without dispute over the basis of recognition, Gap evidence 1, 2, Eul evidence 1, 2, Eul evidence 1, 2, 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Since the Plaintiff, while holding office as a public official of Incheon Metropolitan City, directly cultivated the land Nos. 1 and 2 of this case for at least eight years, it constitutes the reduction or exemption of capital gains tax under Article 69(1) of the former Restriction of Special Taxation Act, and thus, the first and second dispositions of this case,

(2) Even in cases where the land Nos. 1 and 2 of this case does not fall under the land subject to reduction or exemption of capital gains tax as prescribed by the former Restriction of Special Taxation Act, the land Nos. 1 and 2 of this case does not fall under the land subject to reduction or exemption of capital gains tax for not less than two years immediately before each transfer date, and Article 104-3 of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009; hereinafter the same shall apply) and Article 168-6 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008; hereinafter the same shall apply). Thus, the first and second dispositions of this case are unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) According to Article 104-3(1)1 of the former Income Tax Act, Articles 168-6(1) and 168-8(2) of the former Enforcement Decree of the Income Tax Act, and Article 2 subparag. 5 of the Farmland Act, farmland owner is farmland for which he/she does not reside in the place of farmland for a given period or does not cultivate for himself/herself, and land for non-business use is subject to capital gains tax by applying the tax rate of 60/100 of the tax base. The scope of farmland not cultivated by himself/herself is determined as farmland except for self-sufficient farmland under the provisions of Article 2(5) of the Farmland Act.

In addition, Article 69(1) of the former Restriction of Special Taxation Act and Article 66(1) and (12) of the Enforcement Decree of the Restriction of Special Taxation Act provide that the transferor shall have resided in a Si/Gun/Gu where farmland is located or in a Si/Gun/Gu adjacent thereto, and have cultivated the farmland directly for not less than eight years from the time of acquisition until the time of transfer, in order to be eligible for reduction of capital gains tax, and that the transferor shall be deemed to have been engaged in cultivating the crops or growing perennial plants on his/her own farmland at all times or by cultivating or growing them with his/her own labor.

On the other hand, Article 2 subparagraph 5 of the Farmland Act (amended by Act No. 4817 of Dec. 22, 1994) provides that "self-cultivation" means that farmers are engaged in cultivating crops or growing perennial plants in their own farmland at all times, or cultivating or cultivating not less than 1/2 of farming works with their own labor, or agricultural corporations are cultivating crops or growing perennial plants in their own farmland.

(2) The former Enforcement Decree of the Income Tax Act requires the application of the provisions on ‘self-Cultivating' under Article 2 subparag. 5 of the Farmland Act with regard to the meaning of the above provisions, ① ownership of farmland excluded from heavy taxation. The scope of ‘direct farming' under Article 2 subparag. 5 of the former Restriction of Special Taxation Act, ② direct farming conforms to the prior meaning of ‘self-arable', ② the name of Article 69 of the former Restriction of Special Taxation Act is written as ‘reduction of capital gains tax on self-arable land', ③ The legislative history of Article 5 subparag. 6 (d) of the former Income Tax Act (amended by Act No. 4661 of Dec. 31, 1993). In view of the fact that the former Enforcement Decree of the Income Tax Act (amended by Act No. 4661 of Dec. 1, 1993) provides that the provisions on ‘self-taxable land' under Article 9 of the former Restriction of Special Taxation Act (amended by Presidential Decree No. 980 of the same Act) shall be newly amended to be subject to taxation for 18 years or more than six years.

Therefore, the Enforcement Decree or the Enforcement Rule of the Act cannot be amended or supplemented the contents of rights and obligations of an individual unless otherwise delegated by the Act, or new contents that are not prescribed by the Act. However, the legislative purport of the Act or the Enforcement Rule of the Act is merely to specify the possibility of interpretation of the parent law through an organic and systematic examination of the legislative purport of the parent law and the entire provisions related thereto, or if it is intended to embody them based on the purport of the provisions of the mother law, it shall not be deemed to go beyond the scope of the parent law's regulation. Thus, even if the parent law did not directly delegate the above provisions, it shall not be deemed null and void (see Supreme Court Decision 2008Du13637, Jun. 11, 2009). As seen earlier, the "direct cultivation" under Article 69 of the former Restriction of Special Taxation Act is the same concept as the "self cultivation" under Article 2 subparagraph 5 of the Farmland Act, and the above provision is not directly different in accordance with the above provision, and thus, the plaintiff's assertion is without merit.

(3) We examine whether the Plaintiff is engaged in the cultivation of the crops or the growing of perennial plants on the land Nos. 1 and 2 of this case, namely, whether or not the Plaintiff is engaged in the cultivation of the crops or the growing of perennial plants on his own labor.

The following facts may be acknowledged according to the descriptions and images of Gap evidence 3, 7, 4, 8-1, 2, 9-1 through 11, 10-1, 13-1, 2, and 15 through 19, respectively.

① From June 20, 1974 to January 17, 2007, the date of the last transfer of land Nos. 1 and 2, the Plaintiff resided near the instant land No. 1 and 2. ② Since the Plaintiff joined an EE Agricultural Cooperative on July 25, 1994 as a member of the instant association, the Plaintiff is affiliated with the association until now. ③ From April 22, 2002 to July 28, 2009, the instant association sold the instant farmland to the Plaintiff as its business partner with respect to the goods, such as composts, light weathers, agricultural chemicals, and agricultural materials, etc. ④ According to the farmland ledger prepared by the EE Incheon Metropolitan City head, the Plaintiff was registered with the president of the Korea Agricultural Cooperative on February 28, 1995 with respect to the farmland No. 1 and No. 2 of the instant farmland, and the Plaintiff was directly receiving the instant direct payments from the president of the Korea Agricultural Cooperative on July 25, 1995 to 207.

On the other hand, the following facts are acknowledged in light of Gap evidence 2-1, 2, Gap evidence 6, Eul evidence 5-1, 2, Eul evidence 6-1, 6-4, Eul evidence 7-1, 7-2, Eul evidence 7-2, and the whole purport of the arguments.

① The Plaintiff acquired the instant land Nos. 1 and 2 with the compensation received as part of the farmland he was partially expropriated from his father. ② From December 1, 1987 to October 1, 2001, the Plaintiff passed the examination for public officials of Grade 9 in Incheon Metropolitan City, and passed the examination for public officials of Grade 1 in Incheon Metropolitan City. From October 1, 2001, the Plaintiff owned the land of Grade 2 in Incheon Metropolitan City as local administrative officials (Grade V), on October 24, 2003, as the General Affairs of the Autonomous Administrative Bureau in Incheon Metropolitan City, as the local administrative officials from the women’s welfare department in Incheon Metropolitan City on January 9, 206, as the local administrative officials from the women’s women’s welfare department in Incheon Metropolitan City on July 19, 206, the Plaintiff owned or promoted the said land of Grade 1 and 2 in the area of land of Grade 3 in the Republic of Korea from around 1999 to the date of transfer.

In light of the following facts, the Plaintiff appears to have cultivated rice at the end of 7: (i) the Plaintiff was a public official of Incheon Metropolitan City; (ii) the size of farmland owned by the Plaintiff was excessively broad; and (iii) the Plaintiff had already been holding farmland at the time of acquiring the instant land; and (iv) it is difficult to deem that the Plaintiff’s direct payment of farmland at the time of purchasing rice 1 to prevent rural population from being engaged in farming for a long time; and (iii) the Plaintiff’s direct payment of farmland at the time of purchasing rice 7: (i) it is difficult to consider that the Plaintiff’s direct payment of rice 1 to 7: (i) it is difficult to recognize that the Plaintiff had been in the name of 7: (i) it was in the name of the Plaintiff’s owner of the above farmland at the time of raising rice 1 to 1 to 7: (ii) it is difficult to deem that there was no other evidence that the Plaintiff had been in the name of 1 to 1 to 7:6:1 to see that there was no direct payment of rice M for the purpose of preserving.

Therefore, the Plaintiff’s primary and conjunctive assertion, which is premised on the Plaintiff’s direct cultivation of the land Nos. 1 and 2 for at least eight years or two years, is without merit, and both dispositions Nos. 1 and 2 are legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is legitimate, and all of the plaintiff's appeal is dismissed, and it is so decided as per Disposition.