In order to reduce capital gains tax, it shall be cultivated directly for at least eight years while residing in the location of the farmland, and such land shall be farmland as of the date of transfer.

Even if land on the public record is farmland, the land which is not actually used for farming is not used as farmland, whether it is by the owner of the land, or by the owner of the land, it cannot be deemed as farmland as of the date of transfer unless it is temporarily in a state of temporary closure.

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

2016Guhap22958 Revocation of Disposition of Imposing capital gains tax

○ Kim

○ Head of tax office

2017.04.20

6.01. 201

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of capital gains tax of KRW 60,984,120 on July 6, 2015 by the defendant of the Gu office against the plaintiff on July 6, 2015 shall be revoked.

1. Circumstances of dispositions;

A. On April 7, 1981, the Plaintiff acquired 90/1,000 square meters of 1,147 square meters prior to △△△△△-Do, △△△△-Do, and on February 7, 2013, the Plaintiff was divided into 00/1,000 square meters of 1,147 square meters and 522 square meters prior to ○○-○-○○○○○536 square meters and 89 square meters prior to ○○-○○-○○.

B. Of the instant land, 90/1,000 shares in the name of the Plaintiff in the name of △△-gun on the grounds of consultation on public land acquisition, the ownership transfer registration was completed on July 18, 2013. The Plaintiff was paid from △△-gun on July 222, 2013 as compensation for the acquisition of the said public land by consultation on the said public land.

C. On September 10, 2013, the Plaintiff made a preliminary return and advance payment of capital gains tax on the premise that the instant land falls under one of its own farmland for at least eight years as prescribed by Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 12853, Dec. 23, 2014; hereinafter the same) and on the premise that the said land falls under one of its own farmland, the Plaintiff made a preliminary return and advance payment of capital gains tax on the amount of capital gains tax to be voluntarily paid by △△ million after subtracting ○ million won of capital gains tax on the income accrued until September

D. On July 6, 2015, the Defendant issued a correction and notification of the total capital gains tax for the year 2013 on the ground that the Plaintiff failed to meet the requirements for reduction and exemption of capital gains tax on self-farmland (hereinafter “instant disposition”).

E. On February 3, 2016, the Plaintiff filed an appeal with the Tax Tribunal on February 3, 2016. On May 13, 2016, the Tax Tribunal re-examineed whether the Plaintiff directly cultivated the instant land for at least eight years and rendered a decision of re-audit that “the tax base and the amount of tax are corrected according to the result.” After re-auditing the Plaintiff, the Defendant rendered a decision that the instant disposition is appropriate on June 2, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the instant land was cultivated directly for not less than eight years after the Plaintiff acquired and was farmland as of the date of transfer, it constitutes land subject to reduction and exemption from capital gains tax. Therefore, the instant disposition was unlawful on the premise that the instant land is not farmland as of the date of transfer.

Although the defendant should conduct a further investigation into the facts of taxation requirements in accordance with the above re-examination decision of the Tax Tribunal, it cannot be said that the taxation requirements have been established because the defendant did not conduct a further investigation.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the land of this case is farmland as of the date of transfer

According to Article 69(1) of the former Restriction of Special Taxation Act, Article 66(4) and (5) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26070, Feb. 3, 2015); Article 27 of the Enforcement Rule of the Restriction of Special Taxation Act, etc., the Plaintiff shall continuously cultivate the relevant land while residing for at least eight years in the location of the land in order for the Plaintiff to be exempted from capital gains tax on the transfer of the instant land, and shall be farmland as of the date of the transfer. Here, farmland disturbance includes farming, compost, acquisition, branch, concentration, waterway, etc. which are used for real farming regardless of the land category on the public register, regardless of the land category on the public register. Therefore, even if land category on the public register is farmland, it cannot be deemed as farmland that is not actually being used as farmland, and thus, it cannot be deemed as “farmland as of the date of transfer, unless it is temporarily in a state of temporary suspension, regardless of whether it is by the landowner’s own.

(see, e.g., Supreme Court Decision 201Da1548, Apr. 2, 201

The burden of proof on cultivated facts is against the taxpayer who asserts the reduction or exemption of the transfer income tax.

(See Supreme Court Decision 94Nu996 delivered on October 21, 1994, etc.)

In full view of the purport of the entire pleadings in each entry of Gap evidence 7, 8, 10, 13 (including paper numbers),

The plaintiff is a member of Dol Agricultural Cooperatives (hereinafter referred to as "Dolsan Agricultural Cooperatives"), from January 1, 2006.

Until August 28, 2013, the purchase of fertilizers, agricultural chemicals, etc. in the name of the Plaintiff in the name of the Plaintiff;

Property tax on the land of this case was subject to separate taxation as farmland, and a resident around the land of this case

LA and 12 others were directly cultivated by the Plaintiff on the instant land.

chapter 14, 23, and 3 shall be deemed to have been prepared. However, Gap's certificate No. 14, 23, and 3 shall be deemed to have

in light of the following circumstances known by comprehensively taking into account the purport of each entry and all pleadings;

In view of the fact that the land of this case is farmland as of the date of transfer, part of the witness BB as shown above.

Testimony is difficult to believe, and solely based on the facts acknowledged earlier, the land of this case was farmland as of the date of transfer.

Therefore, the plaintiff's above assertion is without merit.

A) A project for building a coastal road (small 1-92 lines) between ○-○○○ and △△-○, implemented by △△△△-gun.

The public announcement of the project approval was made on May 30, 2012.The KimCC from 2010 to the plaintiff in this case

Lease on a leased land operated a basin building site, and KimCC established on the ground of the above land.

On the other hand, 4,673,520 won was paid on the other hand in relation to the unreficial building facilities.

The reason that the land of this case is not used as farmland and is not subject to compensation for farming loss.

The Plaintiff was not paid the farming compensation amount. The Plaintiff did not receive the farming compensation amount to △△ Group.

A request for payment of compensation for farming losses shall be filed by asserting that land is farmland or separately filed;

did not take any such measures as required.

B) The Plaintiff continues to be a farmer in △△△-Do ○-○, △△△-Do, △△△-Do.

The Plaintiff may use fertilizers, agricultural chemicals, etc. purchased from Dol Agricultural Cooperatives in the land

Therefore, this case merely because the plaintiff purchased fertilizers and agricultural chemicals as members of Dol Agricultural Cooperatives.

It cannot be readily concluded that land has been actually used for farming as of the date of transfer.

Land is divided by △△△△△△△-Do ○-○ and submitted by the Plaintiff.

There is also a possibility of confirming the cultivation of the above △△-ri ○-○.

In addition, it can be proved that the land of this case is actually used for farming as of the date of transfer.

The objective data has not been submitted.

C) The Plaintiff’s establishment and management of spatial data, etc. under Articles 168-7 and 168-8 of the Enforcement Decree of the Income Tax Act

In full view of the relevant provisions, such as Article 59 of the Enforcement Decree of the Act on the Law, KimCC shall consider the instant land.

The land in this case is solely based on the temporary use of 57.26 square meters, which is a part of the land in this case.

Where land category can not be changed, and the actual status is not clear, the registration date in the public record shall be the same.

In order to determine land category by yellow dust, since the land category of this case is all the same, it shall be as of the date of transfer.

However, in accordance with the above legal doctrine, it asserts that farmland constitutes farmland regardless of its category on public record.

Since land actually used for farming constitutes farmland, the land category as of the date of transfer shall be classified as farmland.

Accordingly, the plaintiff's assertion that whether farmland is farmland is not farmland is without merit, and KimCC is the plaintiff.

From the beginning, the Plaintiff’s assertion that temporary lease of only 57.26 square meters, part of the instant land, was back.

There is no evidence to receive it.

2) Whether a taxation requirement is satisfied

The Tax Tribunal directly cultivated the instant land for at least eight years on May 13, 2016.

In accordance with the results, the re-examination of whether or not the tax base and amount are corrected shall be decided.

As seen earlier. However, the Plaintiff has directly cultivated the instant land for not less than eight years.

Whether it was a requirement of reduction or exemption of capital gains tax, not a requirement of taxation of capital gains tax.

The evidence submitted by the Defendant alone cannot be deemed to have failed to conduct a re-examination in accordance with the aforementioned purport, and therefore,

The plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.