Early High Court Decision 201Du1614 ( November 01, 201)

The disposition of exclusion from reduction or exemption is legitimate because it is difficult to recognize that the transferred land was cultivated directly.

In light of the fact that there is no special reason to cultivate land by raising a considerable amount of income as a long-term wage income, and there is no reason to do so, it is not easy to accept that the land has been cultivated directly in view of the fact that there is a large scale of land in direct cultivation while living in the workplace.

Article 69 of the Restriction of Special Taxation Act

Article 70 of the Restriction of Special Taxation Act

2011Gudan3041 Revocation of Disposition of Imposing capital gains tax

United StatesAA

Head of the Office of Government

May 14, 2012

July 2, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 000 and special rural development tax for the year 2009 against the Plaintiff on February 11, 201 shall be revoked.

1. Details of the disposition;

A. The Plaintiff acquired and owned 1,254 square meters prior to 00 00 m2,261 m2,000 m2,000 m2,000 m2,000 each on February 24, 1972, and transferred 200 m2,254 m2,254 m2,00 m2,000 m2,342 prior to 00 m2,000 m2,342 on August 10, 204 for all of the above lands on the grounds of consultation on the purchase of public land on December 21, 209, and transferred all of the above lands to Gyeonggi-do Government Corporation (6/10 m20 m20 m200 m2020 m250 m200 m200 m200 m2520 m20 m200 m20 m25 m20.

B. The Plaintiff alleged that the Plaintiff, as a result of the transfer of the instant land in 2009, was self-employed for not less than eight years, and applied Article 69(1) of the Act on Special Taxation (amended by Act No. 9921, Jan. 1, 2010; hereinafter “the Restriction of Special Taxation Act”) that provides for the reduction or exemption of capital gains tax on self-employed farmland, and applied Article 69(1) of the Restriction of Special Taxation Act, 00 won for capital gains tax reduction or exemption, and applied Article 70(1) of the Restriction of Special Taxation Act that provides for the reduction or exemption of capital gains tax on self-employed farmland, and applied for reduction or exemption of capital gains tax on the transfer of the instant land in 209 with respect to the transfer income tax on the land in 2009.

C. In light of the Plaintiff’s occupation, income, and scale of the instant land, the Defendant deemed that the instant land was not cultivated directly by the Plaintiff, and denied the Plaintiff’s application for reduction and exemption, and applied Article 77(1) of the Restriction of Special Taxation Act, which provides for reduction and exemption of capital gains tax on the land for public use projects, and issued a correction and notification of KRW 000 capital gains tax corresponding to the transfer income tax corresponding to the Plaintiff in 2009 and KRW 000 special tax for rural communities (hereinafter “instant disposition”).

D. On April 11, 201, the Plaintiff dissatisfied with the instant disposition, brought an appeal with the Tax Tribunal, and the Tax Tribunal dismissed the said appeal on November 1, 201.

[Grounds for Recognition] The non-contentious facts, Gap evidence 1 to 4 (including household numbers), and evidence 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff directly cultivated the land 1 in this case for not less than 8 years, and the land 2 in this case was directly cultivated for not less than 3 years, and acquired and cultivated substitute farmland after transferring the land, so income from the transfer of land 1 in this case shall be reduced or exempted from capital gains tax pursuant to Article 70 (1) of the Restriction of Special Taxation Act.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Pursuant to Article 69(1) of the Restriction of Special Taxation Act, and Article 66(1)13 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21914, Dec. 30, 2009; hereinafter referred to as the "Enforcement Decree"), the land of this case must be directly cultivated while residing in the Si, Gun, Gu, or Gu where the land of this case 1 is located or in the area within 20 km from the said farmland for at least eight years after the Plaintiff acquired the land of this case under Article 66(1)13 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21914, Dec. 30, 2009; hereinafter referred to as the "Enforcement Decree"). In addition, in order for the land 2 of this case to be affected by the reduction or exemption of capital gains tax, the term "where a person who resided in the location of farmland for at least three years and directly cultivated or transferred the new area of farmland for at least two years after acquisition or new farmland.

(2) First of all, it is insufficient to recognize that the Plaintiff has cultivated the land of this case for not less than eight years or the land of this case for not less than three years, in light of the following circumstances: (a) as to whether the Plaintiff has cultivated the land of this case for not less than three years, and as to whether the land of this case for not less than three years, and as to the entries and images of the evidence of Nos. 4, 9, 12 through 19, and Nos. 2 through 7 (including paper numbers) added to the overall purport of the pleadings, the testimony of Gabling E is difficult to believe, and only the entries and images of evidence of Nos. 20 through 34 (including paper numbers) submitted by the Plaintiff, and it is difficult to find that the Plaintiff has cultivated the land of this case for not less than 8 years, or the land of this case for not less than 3 years (in case where intending to prove the facts by a statement or confirmation, etc. by neighboring residents, it is difficult to conclude that there is no specific evidence to support the Plaintiff’s direct cultivation of this case for more than 2 years.

① On February 25, 1983, the Plaintiff graduated from the OOO department at the OO university from November 1, 1982 to June 18, 1985, and i) from FF to June 18, 1985, and ii) from May 12, 1986 to June 30, 192, and iii) from 1992 to 1995 to 1996, and iv) from 1996 to 1997 to 205, from 200 to 205 to 207, and from 2009 to 204 to 207, from 205 to 2004 to 305 to 204, while from 205 to 305 NM drugs.

② As above, there is no special reason for the Plaintiff to cultivate the instant land, which included considerable income by doing business as a long-term wage income earner.

③ Since the Plaintiff’s spouse and children moved into Korea on July 1, 1991, the Plaintiff’s spouse and children appears to have resided in No. 000 of the above OOO house in Eunpyeong-gu Seoul, Seoul, 000, and they were living separately from their families for more than 17 years since they moved into Korea on January 9, 1995 and live separately from their families for more than 17 years. It is hard in light of the empirical rule that the Plaintiff’s spouse and children were living separately from their families at 000 OO house in the above OO house in the above OO house in Eunpyeong-gu, Seoul, and it is highly doubtful that the Plaintiff actually resided in the above OO house in 00 as the current title, and that the building located on the ground of No. 000 of the OO house is the location of the business establishment, and that the Plaintiff’s parents and children were living in the above OO house in both 00 and the above 0000 households.

② Even if the Plaintiff actually resided after moving to the above OO Ri No. 000 on January 9, 1995, it seems to have been difficult for the Plaintiff to directly cultivate the instant land on the ordinary day because the distance from the above domicile to the workplace where the Plaintiff had worked.

③ As of July 9, 2007, the Plaintiff stated that the land Nos. 1 and the land No. 2 of this case were cultivated on the land No. O. 000 among the land No. 1 and the land No. 2 of this case, and the above entries in the farmland ledger are insufficient to recognize that the Plaintiff had cultivated the land No. 1 of this case for at least eight years and that the land No. 2 of this case was self-cied for at least three years

④ In addition, the above farmland ledger states that the Plaintiff’s farmland up to a total of 18,756 square meters, including the instant land, was self-fluored, and the scale of the land is large when the Plaintiff, who lives in the same workplace, directly, cultivates as above.

⑤ The Plaintiff only submitted a receipt related to the rent for the lease of agricultural machinery after 2009 (No. 12-1 through 10) and fails to submit evidentiary materials related to the previous use of the farming machinery.

(6) In addition, the details of the purchase of grain (No. 15-1) and the sales performance (No. 14-1, 24) after 2009 are limited to the name of the plaintiff, and the sales performance (No. 15-2 through 8) from 2004 to 2009 and the sales performance (No. 16-1 through 3) from 2007 to 2009 are all put in the name of U.K., which is the plaintiff's attached.

7) From 2007 to 2009, the Plaintiff received subsidies for preserving rice income in relation to land No. 000 among the land No. 2 of the instant case, but the Act on preserving Rice Income, Etc. does not require direct cultivation by enacting “direct cultivation by stabilizing income stability of farmers, etc.,” unlike the purpose of capital gains tax reduction or exemption for self-Cultivating farmland. However, “direct cultivation” is not presumed even if direct cultivation was made for preserving rice income, etc. ( further, from 2005 to 2006, the subsidies for preserving rice income in the instant land No. 1 of the instant case were received by the Red Z).

8. That the development plan for ‘O-general industrial complex development project' that was not performed as a member of an agricultural cooperative was entered as a member of the previous agricultural cooperative and that the plaintiff entered the development plan on August 4, 2008 after the public notice of approval was given.

3. Conclusion

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