Cho High Court Decision 2008Do1978 ( December 11, 2008)

Whether the reduction or exemption for eight years can be recognized in cases of self-satisfying by collaboration with his/her family;

Although a person did not reside at the location of farmland at the time of transfer of farmland, he/she had resided in the location of farmland for at least eight years after acquiring farmland while living together with his/her family at the location of farmland, and has been engaged in cultivating rice, etc. at all times for at least eight years, and thus, the relevant farmland

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

1. The Defendant’s disposition of imposition of capital gains tax of KRW 63,073,720 to the Plaintiff on March 5, 2008 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Circumstances of the disposition;

A. On February 20, 1976, the Plaintiff acquired and owned a farmland promotion zone **** 779-5 paddy field 1767m2 (hereinafter “instant farmland”) from the agricultural and forest area ** 779-5m2 (hereinafter “the instant farmland”). On April 23, 2006, the Plaintiff transferred the farmland amounting to KRW 350 million to the upper-line on April 23, 2006.

(b) On February 2, 2007, the plaintiff filed an application for reduction or exemption of transfer income tax on the amount of farmland cultivated directly for eight or more years, as stipulated in Article 69 (1) of the Restriction of Special Taxation Act of the Farmland and Farmland (amended by Act No. 9276 of Dec. 29, 2008, hereinafter referred to as the "Special Provisions on Taxation") and Article 66 of its Enforcement Decree (hereinafter referred to as the "Special Provisions on Taxation").

(c)However, on March 5, 2008, the defendant issued a disposition of rectifying and notifying the plaintiff 63,073,720 won as transfer income belonging to the year 2006, on the grounds that the application for reduction or exemption is not subject to the special provisions on the farmland of this case.

[Reasons for Recognition] Uncontentious Facts, Evidence Nos. 4, 5, Evidence Nos. 1, 6, 7 and the entire pleadings

Purport

2. Claims and points of the parties concerned;

The Plaintiff was 12 years of age at the time of acquiring the farmland of this case, but thereafter, the Plaintiff resided at the location of the farmland of this case for 8 years or longer, and all of his family members, including the Plaintiff, in accordance with the reality of rural communities and family circumstances at the time of living together in the farmland of this case by collaboration, and thus, the instant special provisions are applied to the farmland of this case, while the Defendant asserts that the instant special provisions are applied to the farmland of this case. However, in light of the meaning and scope of the “direct cultivation” under Article

The issue is not subject to the application.Therefore, the issue is whether or not the special provisions of this case are applied.

3. Related Acts and subordinate statutes.

It shall be as shown in the attached Form.

4. Facts of recognition;

A. The plaintiff was born on January 2, 1964, and on February 20, 1976, before the plaintiff's father's father's entry of middle school, the plaintiff acquired the registration of transfer of ownership in the name of the plaintiff with respect to the farmland of this case on February 20, 1976, which was before the plaintiff's entry of middle school. Meanwhile, the plaintiff had been living together with his parent, etc. in the farmland of this case, including the farmland of this case, while residing together with his parent, etc., and performed farming work with his parent. The plaintiff's domicile and residence relationship after the date of acquisition of the farmland of this case

B. The Plaintiff, while residing at the seat of the farmland in this case, was in the middle of the year when he was in a high school as well as his father, who was the principal farmer in agriculture, by using holidays, vacations, and vacations, etc., and was directly engaged in rice farming in the farmland in this case, such as frying, rice beer, frying, and pesticide beer in the farmland in this case. On the other hand, the Plaintiff left the farmland in this case and died on August 17, 2006 after the Plaintiff left the farmland in this case and after March 23, 2006, the Plaintiff transferred the farmland in this case on April 23, 2006, which was four months before the death of the said ○○.

[Ground of Recognition] Gap evidence 1, 2, 3, 6 evidence, Eul evidence 2 to 5, testimony of testimony;

The purport of the entire argument

5. Determination

A. The legislative intent of the special provisions of this case is to reduce the tax burden following the transfer of farmland as part of the land farming policy and to obtain the reduction or exemption of transfer income tax, and it must be the transfer of farmland prescribed by the Presidential Decree among the land that is subject to the taxation of agricultural income tax, which is directly cultivated by the residents prescribed by the Presidential Decree who reside in the location of the farmland (Si/Gun/Gu where farmland is located or Si/Gun/Gu residing adjacent thereto) for not less than eight years. However, with respect to the absence or scope of "direct farming", Article 69 (1) of the Restriction of Special Taxation Act, which is the mother of the special provisions of this case, did not delegate the provisions to subordinate laws and regulations. Article 66 (12) of the Enforcement Decree of the Special Cases of Special Taxation Act, which was newly established on February 9, 2006, "direct farming" means that a resident is engaged in cultivating or growing crops or growing perennial plants on his own farmland, or is cultivated or cultivated with his own labor not less than half of farming work.

However, the provision of the above Enforcement Decree is newly defined in the Enforcement Decree as being incorporated into the basic common rule with regard to the interpretation criteria of ‘self cultivation' or ‘direct cultivation'. It is difficult to view the above provision of the Enforcement Decree as directly binding upon the court or the public. On the other hand, with respect to ‘self cultivation' or ‘direct cultivation', it is interpreted that the above provision of the Enforcement Decree is not only a self cultivation but also a self cultivation or a direct cultivation. (See Supreme Court Decision 94Nu11859 delivered on February 3, 195, etc.) If a resident does not ordinarily engage in the cultivation of crops in his own farmland or has engaged in farming with other occupation than agriculture, and if he does not directly engage in the cultivation with labor, he does not include the above special provision in the case where he does not directly engage in the cultivation of farmland in his family or who is in the same household, and if he does not directly engage in the cultivation of farmland in his family or family with the purport that it is included in the special provision of this case.

B. According to the above facts, although the plaintiff did not reside at the farmland location at the time when the quantity of the farmland in this case was acquired, the plaintiff had been engaged in cultivating rice at ordinary times in the farmland in this case with his family living together with his family living together with his family for 8 years after the acquisition of the farmland in this case, and as seen earlier, it constitutes a case where he cultivated the farmland in this case for 8 years or longer as prescribed by the special provisions of this case. Thus, the transfer of the farmland in this case constitutes a case where he directly cultivated the farmland in this case (the defendant's assertion does not constitute a case where he did not have cultivated the farmland in this case with 1/2 or more of his own labor at the time when the plaintiff was a middle student, and there is no clear standard to measure and calculate the specific degree of the labor force, which is an agricultural cultivation between his family members, and if the defendant's logic is in accordance with the defendant's assertion, the farmland in this case can be viewed as the plaintiff's own ability at the time, and he did not bear the transfer income tax in this case as well.

C. Therefore, the instant disposition, which excluded the application of the instant special provisions on different premise, is unlawful.

6. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition by admitting it.