2012 4632

Whether the Plaintiff directly cultivated the instant land for at least eight years while residing in the location of the instant land

The Plaintiff cannot be deemed to have resided in the instant land for not less than eight years, and thus, the Plaintiff is denied an application for reduction of capital gains tax (the Plaintiff failed to meet the requirements of Article 69(1)

Article 69(1) of the former Restriction of Special Taxation Act (Amended by Act No. 11133, Dec. 31, 201)

2013Gudan1892 Revocation of a taxation disposition

DD

Head of Ansan Tax Office

September 13, 2013

October 4, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of the capital gains tax of the year 201 against the Plaintiff on August 28, 2012 is revoked.

1. Details of the disposition;

○ On March 23, 1982, the Plaintiff purchased and owns an O-type OO 501-1, 563 square meters prior to O-type 501-1, 501-3 road 179 square meters prior to 501-8, and 4,118 square meters in total (hereinafter collectively referred to as “instant land”) of three parcels prior to 501-8, 376 square meters prior to O-type 1982, and owned it. On September 3, 2011, the Plaintiff transferred the instant land.

○ The Plaintiff asserted that the instant land was cultivated directly for at least eight years upon filing a report on the tax base of capital gains on November 24, 201, and applied for reduction or exemption of capital gains tax. However, the Defendant did not apply Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 111133, Dec. 31, 201; hereinafter the same), which is a provision on reduction or exemption of capital gains tax on self-arable land, on the ground that the Plaintiff did not reside at the seat of the instant land for at least eight years. On August 28, 2012, the Plaintiff issued a notice of correction and notification of KRW OOO (hereinafter referred to as “instant disposition”).

○ The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on October 24, 2012, but was dismissed on December 27, 2012.

[Ground of recognition] Facts without dispute, Gap 1, 2, 3, 9, Eul 1 and 2, each entry, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The Plaintiff acquired the instant land on March 23, 1982 and cultivated the ginseng directly from March 23, 199, and cultivated it directly for eight or more years from September 5, 201 to September 5, 201. The Plaintiff’s resident registration card against the Plaintiff stated that the Plaintiff transferred it to OO-Gu O-si 1432-96 on May 26, 198, O-si 1432-96, O-si O-si O-si O-dong O-si O-dong 1432-96, but, in fact, the Plaintiff did not directly cultivate the instant land at O-si O-ri O-ri 125 of the Restriction of Special Taxation Act while residing in the house of this case for two thousand and three days at the house of mother located in the place where the instant land was located, and the Defendant did not directly cultivate the instant land at O-O O-ri 501 and the instant temporary installation.

(2) After transferring the instant land, the Plaintiff purchased farmland of about 300 square meters to the actual place of residence near the Plaintiff’s actual place of residence. As such, income from the transfer of the instant land constitutes the requirements for reduction and exemption of capital gains tax due to the substitute land for self-arable farmland.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Article 69 (1) of the former Act on Special Cases concerning Tax Restrictions provides that "the resident who resides in the farmland area for not less than eight years shall be the land he/she has cultivated directly for not less than eight years," and Article 66 (1) of the former Enforcement Decree of the Act on Special Cases concerning Tax Restrictions (amended by Presidential Decree No. 23590, Feb. 2, 2012; hereinafter the same shall apply) provides that "the resident who resides in the farmland area for not less than eight years" means a person who has cultivated while living in the area, area, Si, Gun, Gu, area, area where farmland is located, Si, Gun, Gu, Si, Gun, Gu, or Gu where the farmland is located, "the person who has resided in the farmland area" under Article 69 (1) of the former Enforcement Decree of the same Act provides that "the person who has resided in the farmland area shall be the person who has resided in the area where he/she has the burden of proof within 20 kilometers of his/her residence and place of residence."

이 사건에 관하여 살피건대, 갑 1, 4호증, 을 1, 2호증의 각 기재에 변론 전체의 취지를 종합하여 알 수 있는 다음과 같은 사정들, 즉 ○ 주민등록표상 이 사건 토지의 취득 시기 이후 원고의 주소는 OO시 OO면 OO리 125(원래 'OO시 OO면 OO리 273'였다가 1984. 8. 4. '같은 리 125'로 변경되었다)였는데, 원고는 1988. 6. 7. OO시 OO구 OO동 1432-96으로 전입하였고, 1989. 1. 5. OO시 OO동 591로 전입하였으며, 그 후 1990. 7. 7. OO시 OO동 104-69로 전입한 이래 이 사건 토지를 양도할 때까지 줄곧 OO시 OO구 OO동에 거주하였으므로, 원고가 이 사건 토지 소재지에 주민등록상 주소를 둔 것은 6년 2개월 남짓 가량이었던 점, ○ 원고의 주장에 의하더라도, 원고가 1988. 1. 13. 결혼한 후에 OO시 OO면 OO리 125에서 어머니와 함께 살다가 1988. 5. 26. OO시 OO동 1432-96으로 이주하여 분가하였고, OO시에 있는 위 어머니 집에는 경작을 위하여 일주일에 2, 3일씩만 갔었다는 것이며, 한편 원고는 1992. 4. 2. OO시 OO구 OO동 2가 94-118에서 'BBB'라는 상호로 건설기계 도급 및 대여업을 개업하여 운영하다가 1995. 1. 27. 폐업하였고, 다시 1995. 8. 1. OO시 OO구 OO동 2가 94-119에서 'CC중장비'라는 상호로 건설기계 도급 및 대여업을 개업하여 운영하고 있으므로, 원고가 OO시 OO동 1432-96으로 이주한 이후에도 그 객관적인 생활 근거가 파주시에 그대로 남아있었다고 보기는 어려운 점, ○ 원고는 인근 주민들이 작성한 자경사실 확인서들(갑 7호증의 1 내지 6)을 제출하였고, 그 서류들에는 원고의 실제 거주지가 1984. 8. 4. 지번 변경 전의 "OO시 OO면 OO리 273"으로 기재되어 있으나, 위 서류들은 객관적인 증거가치를 가진 것으로 보기 어려운 점 등에 비추어 보면, ▷ 원고가 제출한 갑 5 내지 8, 10호증의 각 기재만으로는 원고가 1982. 3. 23.부터 2011. 9. 3.까지 사이에 8년 이상 이 사건 토지가 소재한 OO시 또는 그와 연접한 시・군・구 안의 지역이나, 이 사건 토지로부터 직선거리 20㎞ 이내의 지역에서 거주하였다는 사실을 인정하기에 부족하고, 달리 이를 인정할 증거가 없다.

Therefore, without examining whether the Plaintiff directly cultivated the instant land for at least eight years, the Plaintiff’s above assertion is without merit.

(2) As to the Plaintiff’s assertion of substitute farmland

Article 70(1) of the former Restriction of Special Taxation Act and Article 67(1), (2), and (3)1 of the former Enforcement Decree of the Restriction of Special Taxation Act provide that where a person who directly cultivated while residing in the former location of farmland for not less than three years and residing in the new location of farmland for not less than three years within one year from the date of transfer of previous farmland, and where the area of newly acquired farmland is not less than 1/2 of the area of farmland or not less than 1/3 of the value of the farmland transferred, the tax amount equivalent to 100/100 of the capital gains tax on the capital gains accruing from the substitute land of farmland shall be reduced or exempted. This purport is to protect farmers by allowing and guaranteeing free substitution of farmland, thereby promoting the development and encouragement of agriculture by protecting them. In this case, the previous land and new land acquired shall be farmland at the time of transfer, and the transferor shall be a person who bears the burden of proof against the person liable to pay capital gains tax (see, e.g., Supreme Court Decision 95Nu3695, Sept. 29, 196).

In the case of this case, there is no evidence to acknowledge that the Plaintiff newly acquired farmland after transferring the previous land of this case, and the area of farmland newly acquired even according to the Plaintiff’s assertion does not exceed 1/2 of the area of the previous land of this case, and there is no other assertion or proof as to each value. Thus, the Plaintiff’s assertion cannot be accepted.

3. Conclusion

Therefore, the instant disposition should be deemed lawful. Thus, the instant claim is dismissed as it is without merit. It is so decided as per Disposition.