early 2010 Heavy2396 (Law No. 9.28, 2010)

It is difficult to recognize that he/she has resided and cultivated directly in the area of substitute farmland.

In light of the fact that the spouse resides in another Si and his/her spouse resides in his/her domicile on his/her resident registration, and that he/she receives blood speculation only one to two days from the hospital located in another Si and one to three days from the hospital located in another Si, etc., it is deemed that the spouse is not present at the seat of the substitute farmland and there is no ground for recognizing the self-sufficiency.

Article 70 of the Restriction of Special Taxation Act

2011Guhap1263 Revocation of Disposition of Imposing capital gains tax

XX

the director of the tax office of Western

November 17, 2011

December 15, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 80,367,530 to the Plaintiff on May 1, 2010 shall be revoked.

1. Details of the disposition;

A. On December 23, 1994, the Plaintiff purchased the same 000-00 m2,033 m2, such as Kimpo-si Kimpo-si 000-00 m2,033 m2,000 m2,033 m2, and completed the registration of ownership transfer on the ground of sale on January 28, 1995.

B. On May 29, 2006, the Plaintiff transferred the previous farmland to the Korea Land and Housing Corporation on the ground of a consultation on the land for public use, and completed the registration of ownership transfer on May 30, 2006.

C. On July 28, 2006, the Plaintiff acquired a 1,846 square meters (hereinafter “the substitute farmland in this case”) prior to 000-0 square meters (hereinafter “the substitute farmland in this case”) such as OO 000-0 2,884 square meters prior to Kimpo-si, Mapo-si, Kimpo-si, Kimpo-si, and completed the registration of ownership transfer in the name of the Plaintiff on August 24, 2006.

D. Around that time, the Plaintiff applied Article 70 of the Restriction of Special Taxation Act, which is a provision on reduction or exemption of capital gains tax for substitute farmland, when filing a preliminary return on capital gains tax following the transfer of the previous farmland in this case.

E. On May 1, 2010, the Defendant: (a) deemed that the Plaintiff did not meet the requirements for reduction of capital gains tax due to substitute farmland for farmland on the ground that the Plaintiff resided in the seat of the instant substitute farmland and did not do so; and (b) rendered the instant disposition imposing capital gains tax of KRW 80,367,530 on the Plaintiff in 206.

F. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 24, 2010, but was dismissed on September 28, 2010.

[Reasons for Recognition] Unsatisfy, Gap evidence 9, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff acquired the previous farmland of this case and directly cultivated the previous farmland of this case for not less than three years, residing in the location of the previous farmland (including the concept of land adjoining land; hereinafter the same shall apply) for not less than three years. Since the Plaintiff acquired the farmland of this case within one year from the date of transfer of the previous farmland of this case and continuously resided in the location of the substitute farmland of this case and directly cultivated the substitute farmland of this case, the income from the transfer of the previous farmland of this case is subject to reduction of capital gains tax due to the substitute land of the own farmland of Article 70 of the Restriction of Special Taxation Act, notwithstanding that it is subject

B. Relevant statutes

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

C. Determination

(1) Relevant legal principles

According to Article 70(1) of the Restriction of Special Taxation Act (amended by Act No. 10406, Dec. 27, 2010) and Article 67(1), (2), and (3)1 of the Enforcement Decree of the Restriction of Special Taxation Act, where a person who has resided in the previous location of farmland for not less than three years and cultivated directly for not less than three years, by acquiring another farmland within one year (or two years in cases of expropriation by consultation or expropriation under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor or by consultation or by expropriation under other Acts or by expropriation under other Acts) from the date of transfer of the previous farmland, and where the area of new acquired farmland is not less than half of the area of farmland to be transferred or a third of the value of the transferred farmland is not less than a third of the value of the farmland, the tax amount equivalent to 100/100 of the capital gains tax on the capital gains accruing

The purpose of the regulation on the reduction or exemption of capital gains tax for the substitute land of farmland under the Restriction of Special Taxation Act is to protect self-employed farmers and encourage agriculture by guaranteeing free substitution of farmland, and it should be interpreted to limit the case where the farmland acquired by the self-employed farmer and cultivated is to substitute land for cultivation.

Therefore, the requirements for reduction or exemption of capital gains tax due to substitute land for farmland shall be farmland, ① the previous land and newly acquired land shall be farmland, ② the previous land shall be cultivated directly while residing in the previous farmland location for not less than three years, and in addition, residing in the new farmland location for not less than three years. ③ The residence and cultivation shall begin within one year (two years in the case of expropriation, etc.) from the date of transfer of the previous land. ④ The period between the transfer date of previous land and the acquisition date of new land shall be within one year (two years in the case of expropriation, etc.). ⑤ The area of newly acquired farmland shall be not less than 1/2 of the area of farmland transferred or the value of the transferred farmland shall be not less

In addition, the term "direct cultivation of farmland" means that a resident is engaged in the cultivation of 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 is engaged in the cultivation or cultivation of not less than 1/2 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 reduced or exempted on the income accrued from substitute land for farmland for cultivation, the Plaintiff must first prove the above facts of the assertion ② (see, e.g., Supreme Court Decision 92Nu11893, Jul. 13, 1993).

(2) Review of this case

In this case, it is examined whether the plaintiff had been directly cultivated of the substitute farmland of this case while residing in the location of the substitute farmland of this case for not less than three years, which is the requirement of the above ②.

As shown above, Gap testified some of Gap evidence Nos. 2 through 5, 10 through 18 (including the number of pages) and witness rights A. However, in light of the following circumstances, these evidence alone is insufficient to recognize that the plaintiff had cultivated the substitute farmland of this case directly while residing in the vicinity of the seat of the substitute farmland of this case, and there is no other evidence to acknowledge this otherwise. The plaintiff's above assertion is rejected.

① From January 9, 2004 to May 24, 2007, the Plaintiff’s domicile on his resident registration is 000, 000, O200, O200, O200, O200, 100-0, O200, 100, 100, 100, 100, 100, 100, 100, 100, 100, 200, 100, 100, 100, 100, 200, 100, 100, 100, 100, 100, 100, 100,000, 100,000,000,000,000,000,000,000,000,00 won.

② According to the Plaintiff’s assertion, the Plaintiff directly cultivated the previous farmland of this case and the substitute farmland of this case for not less than 6 years, and the witness rightA, which was known to the Plaintiff for not less than 20 years, knows that the Plaintiff had cultivated the previous farmland of this case before 2006 (the testimony of the witness rightA), and there is no evidence to acknowledge that the Plaintiff cultivated the previous farmland of this case and the substitute farmland of this case, and thus, the Plaintiff had cultivated the substitute farmland of this case for not less than 20 years.

③ Even if there was an outflow from the substitute farmland of this case, the Plaintiff suffered from chronic renal failure and received blood marble once every 2-3 days from the hospital located in Ycheon-si, so it seems difficult for the Plaintiff to directly cultivate the substitute farmland of this case with the total area of up to 4,730 square meters, and in light of the fact that the witness authority A made it difficult for the Plaintiff to directly cultivate the substitute farmland of this case with twitter and management machinery (the witness authority A’s testimony), the part directly work in the substitute farmland of this case by the Plaintiff is not less than 1/2 of the entire farming work.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.