Reduction of or exemption from capital gains tax for farmland substitute land

It is difficult to regard that a person was self-employed because he/she did not submit objective and direct data, such as the fact that he/she was asserting that he/she was self-employed, but the basic farming equipment necessary for farming, details of the possession of agricultural products

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

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s imposition of KRW 105,854,411 on the Plaintiff on February 20, 2009 shall be revoked.

1. Details of the disposition;

A. On January 12, 200, the Plaintiff purchased 853 square meters of ○○-dong 362-17, ○○-dong (hereinafter “previous farmland”). The previous farmland was completed in the name of △△ Corporation on December 13, 2005 on the ground of an agreement on the acquisition of public land (the date of December 12, 2005).

B. On May 3, 2006, the Plaintiff acquired a 952m2 square meters (hereinafter referred to as “alternative farmland”) in △△△-dong, 724, △△△-dong.

C. On May 31, 2006, the Plaintiff reported the acquisition of substitute farmland to the Defendant as non-taxation at the time of filing a final return of capital gains tax on the previous farmland.

D. On February 20, 2009, the Defendant deemed that it does not meet the requirements for reduction and exemption of capital gains tax due to substitute land for farmland, and determined and notified the Plaintiff of KRW 105,854,71 of capital gains tax for the year 2005 (hereinafter “instant disposition”).

E. The Plaintiff, who was dissatisfied with the instant disposition, filed an objection against the Defendant on May 27, 2009, but was dismissed on June 23, 2009, and again filed a request for examination with the Commissioner of the National Tax Service on September 21, 2009, but was dismissed on October 27, 2009.

[Grounds for Recognition] Facts without any dispute, Gap's 2,3,5,6,8,9, Eul's evidence No. 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff had resided in the previous farmland by acquiring farmland in around 1999 and cultivating vegetables, etc. for not less than three years in the previous farmland, and had acquired and cultivated substitute farmland within one year from the date of transfer of the previous farmland. As such, the income from the transfer of the previous farmland is subject to reduction of capital gains tax due to the substitute farmland under Article 70 of the Restriction of Special Taxation Act, notwithstanding the reduction of capital gains tax due to the substitute farmland, the instant disposition on the different premise should be revoked.

B. Relevant statutes

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

C. Determination

1) According to Articles 70(1) and 70(1) of the Restriction of Special Taxation Act (amended by Presidential Decree No. 9921, Jan. 1, 2010); Articles 67(1), 67(2), and 67(3)1 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 20620, Feb. 22, 2008) where a person who directly cultivated while residing in a previous location of farmland for not less than three years has acquired another farmland within one year and cultivated while residing in a new location of farmland for not less than three years within one year from the date of transfer, and where the newly acquired farmland area exceeds half of the area of farmland to be transferred, or a third or more of the value of the farmland to be transferred, the tax amount equivalent to 100/100 of the transfer income tax on any transfer income accruing from substitute

2) The purport of the provision that reduces capital gains tax on the substitute land of farmland under the Restriction of Special Taxation Act is to protect a self-employed farmer and encourage agriculture by guaranteeing free substitution of farmland. Therefore, the subject of reduction or exemption shall be construed to limit the cases where the farmland acquired and cultivated by the self-employed farmer is to be substituted by the necessity for cultivation.

Therefore, the requirements for reduction of capital gains tax due to substitute land for farmland shall be farmland. ② The former land and new land shall be cultivated directly while residing in the former land location for not less than 23 years and residing in the new land location for not less than 3 years in addition thereto. ③ The residence and cultivation shall begin within 1 year from the date of transfer of the previous land. ④ The period between the date of transfer of the previous land and the date of acquisition of the new land shall be within 1 year, and ④ the area of farmland to be acquired shall be 1/2 or more of the area of the transferred farmland, and the value of the transferred farmland shall be 1/3

In addition, the term "direct cultivation" means that a resident engages in the cultivation of the crops or the growing of perennial plants in his own farmland at all times (in the location and location of the farmer and farmland, in the vicinity of time) or who cultivates or cultivates not less than half of the farming work with his own labor (in the direct labor force of the farmer).

In addition, in order for the Plaintiff to have the capital gains tax on income generated from substitute land for farmland as a necessity for cultivation reduced or exempted, all of the requirements of the claim’s status ② must be proved (see, e.g., Supreme Court Decision 92Nu11893, Jul. 13, 1993).

3) We examine whether in this case, the plaintiff resided in the previous location of the previous farmland for not less than three years and directly cultivated the previous farmland for not less than three years in addition to the former location of the farmland and directly cultivated the substitute farmland while residing in a new location of the farmland for not less than three years.

A) Facts consistent with or favorable to the Plaintiff’s assertion

According to each testimony of Gap 4, 7, 13, 14, 23, 24 and Eul 6 (including each number), witness KimA, and Korea B, the following facts can be recognized:

① The first farmland ledger drawn up on December 5, 2005 stated that the plaintiff has ever been paying taxes on the previous farmland. ② From July 12, 2005 to January 21, 2007, 00-2, 200-2, 254-5, and 401, ○○○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○ 254-5, and 401, respectively, are recorded as the plaintiff’s domicile on the resident registration. ③B made out ○ ○○ 362-6, ○, ○, ○ 360, ○, ○, ○○ 206, ○, ○○, ○○ 205, ○, ○○, ○○, ○○, ○○ 22222, ○, ○507, respectively.

B) Facts that do not comply with the Plaintiff’s assertion or disadvantageous

On the other hand, the following facts are also acknowledged in light of the overall purport of the arguments in Gap evidence Nos. 2, 3, 15, 24, and Eul evidence Nos. 2,3,5,6,7, and 9 (including various numbers).

①2007.1.22.부터 2008.2.3.까지 ☆☆시 ☆☆동 295-47(이하'이 사건 주소지'라 한다) 주민등록상 원고의 주소지로 되어 있다.②원고가 실제로 거주했다고 주장하는 이 사건 아파트는 재건축대상 아파트로서 임차기간 동안의 거주조차 보장 되지 아니하는 불안정한 상태였는바, 이미 이 사건 주소지에 주택을 소유하고 있었고 초등학생 자녀까지 둔 원고가 이 사건 아파트를 임차하여 거주하였다는 것은 상당히 이례적이다.③국세청의 자료에 의하면, 원고는 2006년 및 2007년에 합계 12,131,000원의 근로소득이 있었고, (주)♤♤화장품에서 2006년에 18,425,000원, 2008년에 22,392,000원의 사업소득이 있었다.④원고는 2007.7.5.부터 2008.5.29.까지'□□□이'라는 상호로 편의점을 운영한 사업자로 등록되어 있다.⑤송CC은 '영수증(을 제6호증의 1,2,3)의 공급자명과 도장은 자신의 것이 맞으나, 작성일, 금액, 품목, 수량 란은 자신이 기재한 것이 아니며, 기재된 품목 중 후라단은 자신의 업소에서 판매하지 않은 것이다'라는 취지의 확인서를 작성 제출하였다.⑥원고는 과세관청에 미나리 판매를 증명하기 위하여 ◆◆◆과(주)작성의 정산서(수탁판매계산서)를 제출하면서 경매일자를 '2009.4.28.→2008.4.26.','2009.4.29.→2008.4.29.'로 각 임의 변경하여 제출하였다.

(c) small decision;

In addition, the Plaintiff’s previous farmland and substitute farmland can not be easily admitted as evidence for the Plaintiff’s direct cultivation of farmland and substitute farmland (along with the Plaintiff’s own labor not less than 1/2 of cultivation or farming work) and the apartment of this case’s possession of basic farming equipment, such as insertion, improvement, and ebburance, and the situation that the Plaintiff failed to submit objective and direct materials, such as the details of the possession of agricultural products before 2008, and sales of agricultural products before 208, and the statement that the Plaintiff deemed to meet the above requirements, etc. (i.e., the statement of evidence Nos. 18,19,22,25, and26, and witness HongD’s testimony cannot be easily admitted as evidence for the Plaintiff’s previous farmland and substitute farmland, and there is no other evidence to acknowledge it otherwise. Therefore, the Plaintiff’s remaining grounds on the premise that the above requirements have been proved are all met, and the disposition of this case is legitimate without merit.

3.In conclusion

Thus, the plaintiff's claim of this case is dismissed as there is no ground.