Early High Court Decision 201J 1781 (Law No. 1106.30)

As it is difficult to see that farmland has been directly cultivated, corresponding to non-business land.

In light of the fact that police officers worked as a police officer, have considerable income, and considerable time is required to return farmland from their place of residence to farmland, the area of farmland is excessively wide in the period of cultivation on a holiday, and most of rice farmers were assigned to others, it is difficult to see that they directly cultivated 1/2 or more of the farming work.

Article 104-3 of the Income Tax Act

2011Guhap3832 Revocation of Disposition of Imposing capital gains tax

GaO

The director of the North Incheon National Tax Office

May 4, 2012

May 25, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing capital gains tax of KRW 000 for the year 2008 against the Plaintiff on March 8, 2011 is revoked.

1. Details of the disposition;

A. On June 18, 1997, the Plaintiff acquired 000 won OOOO 00,747 square meters (hereinafter referred to as "one farm land in this case") and 2,314 square meters (hereinafter referred to as "the two farmland in this case" in this case, and "each farmland in this case" in this two lots, and received two payments by July 13, 2007, and received two payments by April 16, 2008. On the other hand, the Plaintiff transferred the farmland in this case's name in this case, and the farmland in this case's name in this case's name in this case's name in this case's name in the second half of April 16, 2008, and in the second half of January 9, 2009.

B. On June 20, 2008, the Plaintiff, with respect to the first transfer in this case, entered 00 won, 000 won in the transfer value, 000 won in the necessary expenses, and 000 won in the transfer value, and on March 30, 2009, the second transfer in this case entered 00 won in the transfer value, 000 won in the necessary expenses, and 000 won in the transfer income tax base applying each general transfer income tax rate, and paid 00 won in the total of 00 won in the transfer income tax for the year 2008 and 000 won in the transfer income tax for the year 2009.

C. On September 30, 2010, the Defendant issued a prior notice of taxation amounting to KRW 000 (=00 +00 won +00 won) on the ground that the farmland in this case falls under the non-business land prescribed in Article 104-3 of the former Income Tax Act (amended by Act No. 9270, Dec. 26, 2008; hereinafter the same) and that the Defendant applied the heavy taxation rate of 60% on each transfer margin, and the total amount of KRW 000 (00 +00) on the transfer income for the year 2009.

D. On November 1, 2010, the Plaintiff made a re-audit to the Director of the Central Tax Office having jurisdiction over the review of the legality before taxation, and the Director of the Central Tax Office having jurisdiction over the transfer value of each farmland of this case. According to the above decision, the Defendant re-examineed the transfer value of each farmland of this case according to the above decision, and each of the above transfer value includes KK and HoH Kim II, and JJ, and the actual transfer value of each farmland of this case except for the resale marginal profits was confirmed as 00, and confirmed the fact that the actual transfer value of each farmland of this case was 00, and on March 8, 201, 200, calculated by applying 60% of the tax rate for idle land and 40% of the penalty tax for unjust under-reported return to the Plaintiff, respectively, as transfer income tax for the year 2008 (hereinafter “instant disposition”).

E. On May 6, 2011, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, and on June 30, 201, the Tax Tribunal revoked 40% of the instant disposition and dismissed the remainder of the Plaintiff’s appeal on the ground that the instant report does not constitute an illegal underreporting. Ultimately, the amount equivalent to 40% of the wrongfully underreporting penalty tax out of the instant disposition (However, the Plaintiff asserted that 40% of the wrongfully underreported penalty tax is 00 won) was reduced according to the said decision.

[Reasons for Recognition] The facts without dispute, Gap 1 through 7 evidence (including each number, hereinafter the same shall apply), and Eul 5 evidence, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff directly cultivated rice near each of the instant farmland from around 1997 to 2007, and the instant land does not constitute non-business land. Nevertheless, the Defendant rendered the instant disposition on a different premise without proof that the instant land constitutes non-business land, and the instant disposition was unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) The Plaintiff’s occupation and work environment

A) The Plaintiff served as a police officer from October 30, 1980 to June 30, 2008, and served as a police officer from March 1, 199 to March 1, 199.

B) The Plaintiff was circulard at the R police station RP RPR RD zone, from around 2006 to June 2007 (day-day - night - non-time - non-time - non-time - non-time : 00 each week, and night: 21:0-day 00 to 09:00 each day after the following day, and : 09:0 each month, and 21:0 each month, and 3:2:0 each month, and 4:0 hours each month from June 2007 to June 4: 2008, and 4:0 hours each month, 4:0 hours each month, and 9:20 hours each month, and 4:0 hours each month from June 200 to June 200: 4:2:0 hours each month.

2) The plaintiff's residence

A) From June 25, 1994 to March 14, 1999, the Plaintiff resided in Kimpo-si 000 Opo-dong.

B) From March 15, 1999 to January 21, 2007, the Plaintiff resided respectively in the above 00 OOOOOO apartment No. 0000, and from January 22, 2007 to January 31, 2007, 00 OO apartment No. 0000, and 000 from February 1, 2007 to December 14, 2010.

3) The farmland ledger and each farmland street;

A) The farmland ledger against the plaintiff was first prepared on November 30, 1995, and the above farmland ledger was written by the plaintiff as being directly cultivated each of the farmland in this case, and 000 m2,404 m2, and 000 m2,000 m2,000 m2,000 m2,000 m2,000 m2.

B) The Plaintiff’s place of residence (O0-0 PP apartment 00,000), each of the instant farmland is about 23.37 km (58 km as a motor vehicle), and each of the said OO-dong farmland is about 5.52 km (19 km as a motor vehicle).

4) Details of joining and purchasing agricultural cooperatives;

A) On October 30, 1970, the Plaintiff invested 000 won (246 units of investment, 5,000 won per unit, and 5,000 won per unit) in the Kimpo Agricultural Cooperative.

B) The sales by each trader of Kimpo Agricultural Cooperatives (as of January 1, 2005 - April 14, 201), and the Plaintiff purchased each pesticide from May 2, 2006 to June 1, 2007, and the total amount of KRW 000,000, from March 31, 2008 to April 5, 2011, and the total amount of KRW 00,000,000, from May 2, 2006 to June 1, 207, and the total amount of KRW 00,000,000, from May 23, 2008 to April 5, 2011, and the total amount of KRW 0,000,000, KRW 00,000, KRW 5,000, KRW 5,000, KRW 5,205,000, KRW 205,5,206.25,206.

(v) the filing of complaints related to agriculture and direct payments for preserving rice income, etc.;

A) From January 1, 199 to August 2006, the Plaintiff filed a civil petition seeking restoration of a damaged farm road and road packaging in the vicinity of each farmland of this case on several occasions.

B) In 2005 and 2006, the Plaintiff applied for subsidies for preserving rice income, etc. in relation to each of the farmland of this case and received each of them.

6) Current status, etc. of ownership of agricultural machinery

A) The Plaintiff did not own the agricultural machinery at all and owned the agricultural machinery such as insertion.

나) 한QQ은 수수료를 받고 자신이 소유하고 있는 이앙기， 트랙터， 콤바인 등의 농기계를 이용하여 이 사건 농지에서 논갈기， 논쓸리기， 모내기， 벼베기 등의 일을 하 였고， 이TT 등은 일당을 받고 이 사건 농지에서 일을 하였다.

[인정근거] 다툼 없는 사실， 갑 6 내지 9， 13， 14， 15， 17， 19， 24호증， 을 3 내지 7 호증의 각 기재， 갑 20 내지 23， 25， 26호증의 각 일부 기재， 증인 한QQ， 이TT， 남SS의 각 일부 증언， 변론 전체의 취지

D. Determination

1) According to Article 104 (1) 2-7 of the former Income Tax Act, Article 104-3 (1) 1 of the former Enforcement Decree of the Income Tax Act, Article 168-6 (1) and Article 168-8 (2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301, Feb. 4, 2009; hereinafter the same shall apply), and Article 2 subparagraph 5 of the Farmland Act, the farmland owner does not reside in the farmland for a given period, or does not own farmland for non-business purposes by applying the tax rate of 60/100 of the tax base for non-business land, and the scope of non-business land is defined as farmland except for self-Cultivating farmland under Article 2 subparagraph 5 of the Farmland Act, and Article 2 subparagraph 5 of the Farmland Act provides that the plaintiff is obliged to bear the burden of proof for non-business purposes for 10 years and 20 years or more of the farmland for non-business purposes.

2) 그러므로， 이에 관하여 보건대， 위 인정사실 및 변론 전체의 취지에 의하여 인정되는 다음과 같은 사정 즉，① 원고는 1980년부터 2008년경까지 경찰공무원으로 근 무하면서 상당한 소득이 있었고， 이 사건 각 농지의 양도 당시 55세의 적지 않은 나이였으며， 경찰공무원의 3조 2교대제， 4조 탄력근무제에서의 비번이나 휴무는 주간 또는 야간 근무로 인한 피로를 회복하고 다음 근무를 준비하기 위한 필수적인 휴식시간일 뿐 농사일에 계속적으로 종사할 수 있는 여유시간으로 보이지 않는 점，② 이 사건 각 농지는 원고의 거주지로부터 약 23km 떨어져 있어 왕복에 상당한 시간이 소요될 뿐만 아니라 원고가 농기계 작업을 다른 사람에게 맡겼다고 하더라도 나머지 작업을 비번일 이나 휴무일에 경작하기에는 이 사건 각 농지의 면적(7，061㎡)이 지나치게 넓은 점，③ 원고는 이 사건 농지 외에도 거주지로부터 약 5km 떨어진 곳에 면적 합계 3，312㎡(= 2，404㎡ + 908㎡)의 밭도 소유하고 있고， 농지원부상 위 밭도 경작한 것으로 기재되어 있는 점. ④ 원고는 농기계를 전혀 보유하고 있지 않았고， 벼농사의 대부분을 차지하는 논갈기， 논쓸리기， 모내기， 벼베기 등의 작업을 한QQ이 직접 운전하는 농기계들에 의하여 수행하였으며， 원고가 보유한 농지 면적을 고려할 때 상당한 정도의 쌀을 수확하 였을 것임에도 수매내역 등 재배된 쌀의 정확한 매출내역을 밝히지 못하고 있는 점，⑤ 원고는 김포농업협동조합으로부터 비료， 농약 등 농사 관련 물품들을 구입하기는 하였으나， 그 구입시기가 상당 부분 이 사건 각 농지의 매도일 이후의 것이고， 이 사건 각 농지 등 원고가 소유한 농지면적에 비하여 구입량 및 비용도 근소할 뿐만 아니라 상당 부분 논농사가 아닌 밭농사와 관련된 물품으로 보이며， 농지원부나 쌀소득등보전 직불금 등은 농지 소유자 앞으로 임의로 발급되거나 농지 소유자가 임의로 신청할 수 있는 것이고 농로에 관한 민원 역시 직접 경작하는 사람만이 제기할 수 있는 것은 아닌 점 등을 종합해 보면，원고는 구 소득세법 시행령 제168조의6 제1호 소정의 기간 동안 이 사건 각 농지에서 농작물을 직접 경작하였다고 볼 수 없고， 적어도 이 사건 농지에서 위 법령 소정의 기간 동안 농작업의 2분의1 이상을 원고의 노동력에 의하여 경작 또는 재배하지 아니하였다고 봄이 상당하므로，이 사건 각 농지는 비사업용 토지에 해당된다고 할 것이고，이에 관한 피고의 입증도 있다고 할 것이다.

3) Therefore, the instant disposition made by the Defendant on the same premise is lawful.

3. Conclusion

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