2012west 4063 ( December 11, 2012)

Whether or not satisfying the requirements for direct cultivation for not less than eight years, from the time of acquiring the relevant land, to the time of transferring it, while residing in an area within 20 kilometers, or from the time of acquiring it.

Even if the Plaintiff cultivated the instant land, it constitutes a case where the Plaintiff indirectly conducted the agriculture by transferring it to another occupation, such as the operation of the Gosiwon. In this regard, the Plaintiff cannot be deemed a self-employed farmer.

2013Gudan6407 Disposition of revoking capital gains tax

AAA

Head of Nowon Tax Office

October 10, 2013

October 31, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On July 18, 2012, the defendant revoked the disposition of notice of correction of capital gains tax belonging to the year 2009 against the plaintiff.

1. Details of the disposition;

A. On July 21, 200, the Plaintiff acquired an OO-dong 443-2 response 2,136 square meters (hereinafter “instant land”). The said land was expropriated by the Korea Land Corporation on March 25, 2009 (the retention period of the Plaintiff 3,170 days, August 250) (the retention period of the Plaintiff 3,170 days, August 250).

B. On May 31, 2010, the Plaintiff filed an application for reduction or exemption of capital gains tax by applying Article 69 of the Restriction of Special Taxation Act (the Regulation on Reduction or Exemption for Self-Cultivating Farmland for at least eight years) upon reporting capital gains tax.

C. As a result of an on-site investigation into the Plaintiff’s report on capital gains, the Defendant confirmed that the Plaintiff operated the OO-dong O-dong O-dong 6-137 during the instant land retention period, and subsequently excluded the provision on capital gains tax reduction and exemption, deeming that the Plaintiff did not own the instant land for at least eight years, and issued a prior notice of taxation on May 31, 2012. The Plaintiff filed a request for pre-assessment review but dismissed, and thereafter, the Defendant issued a notice of correction and notification of the capital gains tax OOO (hereinafter “instant disposition”).

D. The Plaintiff appealed to the instant disposition and filed an appeal with the Tax Tribunal, but the Tax Tribunal dismissed the appeal on December 11, 2012.

[Grounds for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 1-11 (including paper numbers)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although there was a change in the place of residence four to five times in the instant land while carrying out self-competitive activities, the Plaintiff continued to reside in the area within 20km in a straight line from the instant land, such as OOdong, OOdong, OOdong, and OOdong, etc. on March 9, 201, and the Plaintiff purchased ornamental trees, such as pine trees and seedlings from OOdong-ri 71-9, OOdong-ri 71-2, and transplanted the area corresponding to approximately 1/2 of the instant land from OOri-ri 287 at OOri-ri 287, and then purchased seeds and tools from Kim B-ri Ori 287 at OOri-ri 287, and used them to engage in landscape activities for a total period exceeding eight years (self-requirements). Nevertheless, the instant disposition was unlawful.

B. Determination

1) Relevant legal principles

According to Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 9924, Jan. 1, 2010); Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21429, Apr. 21, 2009); the former Enforcement Rule of the Restriction of Special Taxation (amended by Ordinance of the Ministry of Finance and Economy No. 70, Apr. 7, 2009) (amended by Ordinance of the Ministry of Finance and Economy), as a requirement for reduction or exemption of capital gains tax, the transferor shall directly cultivate the land for at least eight years, while residing in a Si/Gun/Gu where the farmland is located or a Si/Gun/Gu adjacent thereto, or an area within a 20-meter radius from the farmland, or from the time of acquisition to the time of transfer of the land.

In this context, "farmland" is a rice and field, which is land actually used for cultivation regardless of the land category in the public cadastral book, and includes farming ciphers, composts, pumping stations, swamps, branches, roads, waterways, etc. which are directly necessary for farmland management, and "direct cultivation" means that the transferor is engaged in cultivating crops or growing perennial plants on his/her own land at least half of farming work or cultivating or cultivating them with his/her own labor.

The purport of the aforementioned provision on exemption from capital gains tax on self-owned farmland is to prevent the decline in rural population and to support policies to foster agriculture by allowing those engaged in agriculture to engage in agriculture for a long time through exemption from capital gains tax on income accrued from the transfer of self-owned farmland for not less than eight consecutive years. As such, even if a person engaged in agriculture concurrently engages in another occupation, if he/she concurrently engages in another occupation, he/she shall not be deemed a self-employed farmer, but if he/she indirectly engages in agriculture in another occupation, he/she shall not be deemed a self-employed farmer. In addition, the burden of proof on the fact that he/she cultivated the transferred land is a taxpayer who asserts exemption from capital gains tax, and the fact that the transferred land has been used as farmland for not less than eight years is recognized, and thus, it is not presumed that the transferor has been self-employed (see, e.g., Supreme Court Decision 94Nu996, Oct. 21,

2) As to the requirements for re-villages

The place of residence from the acquisition date ( July 21, 200) to the transfer date ( March 25, 2009) of the instant land entered in the evidence No. 2 (Abstract of the Plaintiff’s resident registration) shall be as follows:

State Action

Transfer Date

Date of transfer

Residential Date

OO also OOO OO-Eup 42

July 21, 2000 (Acquisition Date)

April 27, 2001

281 Date

OOO-gu OO-dong 1205

April 28, 2001

October 15, 2002

536 Date

OO-si OO-dong 1353 CCC apartment 135-1301

October 16, 2002

November 20, 2003

401 Day

OO-gu OO-dong 1205 (1201-10)

November 21, 2003

June 13, 2005

571 Date

OOO-gu OOO-dong 655 DDA apartment 101-1202

June 14, 2005

(Transfer Date) March 25, 2009

1,381 days

Consolidateds

3,170 days

Of the above residence, "OOO, OO, O-dong 1353 CCC apartment 135-1301" means that the straight line between the instant land and the instant land exceeds 20 km (23.71km in a fixed straight line). Therefore, it is difficult to recognize that the Plaintiff resided in the instant land only 2,769 days except '401 days residing in O-Gu O-dong 1353 CCC apartment 135-1301', and '2,769 days' within 20 km in a straight line from the instant land, and it is difficult to recognize that the Plaintiff resided in the said land for more than 8 years after July 21, 200, only 'O-dong 100' within 20 'O-dong 100 'O-dong 200 'O-dong 200 'O-dong 80 'O-dong 'O'.

(iii)For self-sufficiency requirements:

Next, in light of the following circumstances, it is difficult to recognize the Plaintiff’s submission of the evidence alone, as to whether the Plaintiff was engaged in cultivating crops or growing perennial plants on the instant land at all times, or 1/2 or more of farming work with his own labor, in light of the aforementioned evidence and the overall purport of the pleadings, and the following circumstances acknowledged by comprehensively considering the aforementioned evidence and the statement in Gap’s evidence Nos. 12 and 13.

○○ evidence No. 3 (Certificate of Sales of GeB) and evidence No. 1-5 (certificate of fact of farmland cultivation) No. 8 (certificate of fact of farmland cultivation) are possible, so their credibility is not high, and the content of confirmation of fact of farmland cultivation is merely that the Plaintiff cultivated together with her husband and E, or that the Plaintiff cultivated the instant land directly. It cannot be viewed as an objective evidence that the Plaintiff directly cultivated the instant land. Not only is it not verified whether the Plaintiff was directly related to the instant land, but also it cannot be deemed that the Plaintiff directly cultivated the instant land even if related to the instant land. Moreover, even if it is related, it is difficult to view that the Plaintiff directly cultivated the instant land. Moreover, it is difficult to view that the Plaintiff directly cultivated the instant land as evidence to support the Plaintiff’s direct confirmation of fact of farmland cultivation (written statement of land ownership and appraisal of goods), Gap’s certificate No. 5 (Internet High Daraon Paka Pac, and its content) and Gap evidence No. 6 (written statement of fact of farmland cultivation).

From October 29, 2007 to January 21, 2010, the Plaintiff directly operated the FF Publication Board from 'OO-dong 6-137' to 'O-dong 'O-dong 6-137'. This is considerably far away from the land of this case, so it is difficult to deem the Plaintiff to have operated the FF Publication Board while cultivating the land of this case. The Plaintiff’s farmland holding period excludes the period of operation of the FF Publication Board (a year and 5 months) from 'O-dong 6-137' to 'F Publication Board'.

The formerGG, a dependent of the Plaintiff, had other income from 2007 to 2009 as indicated below, so it cannot be deemed that the formerGG managed and operated the Public Notice Board as alleged by the Plaintiff.

Reversion Year

Classification of Income

Name of the Payment Agency

Revenue amount

(unit:,000 won)

Payment Month

2007

Daily Employment

HH Oil station

OOO

from March to June;

from August to December.

208

Daily Employment

HH Oil station

OOO

February to December 12

209

Business Income:

III

OOO

Daily Employment

( state)JJ

OOO

April;

Daily Employment

KK

OOO

September to December 12

Daily Employment

LL

OOO

May;

Daily Employment

HH Oil station

OOO

February to June;

Daily Employment

(ju)MM tetex

OOO

December;

○ The Plaintiff, along with her husband’s entire EE, was suffering from the fact that the Plaintiff maintained his livelihood by driving a truck with her husband. As to the reasons for planting ornamental trees, such as pine trees, etc., on the instant land, there are stated that the industrial wastes were buried on the instant land, and thus, the Plaintiff was inevitably sentenced to a fine in the local government without forming a farmer’s houses. Accordingly, it is difficult to deem that the Plaintiff directly cultivated the instant land.

○ Even if the Plaintiff cultivated the instant land, it constitutes a case where the Plaintiff indirectly conducted the agriculture by transferring it to another occupation, such as the operation of the Gosiwon. In this regard, the Plaintiff cannot be deemed a self-employed farmer.

4) Therefore, the instant disposition is lawful on the premise that the Plaintiff did not directly cultivate the instant land for eight years.

3. Conclusion

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