Whether it constitutes a reduction of farmland substitute land

It is difficult to recognize the settlement area of a mushroom as a site for facilities prescribed by Presidential Decree, which are production facilities for agricultural and livestock products under Article 2 subparagraph 1 (b) of the Farmland Act, and furthermore, it cannot be interpreted that it is included in the "agricultural shed, compost shed, pumping station, pumping station, branch office, density, waterway, etc." under Article 27 (1) of the Enforcement Rule of the Restriction of Special Taxation Act.

Restriction of Special Taxation

Suwon District Court 2017Gudan1395 Revocation of Disposition of Imposing Capital Gains Tax

Part 1, 2 of the land must be recognized as farmland, but the defendant shall not be less than 1, 2 of the land

5. Exclusion from reduction or exemption as farmland for the portion other than the fixed area of the five farming houses:

Since the instant disposition was made, the instant disposition was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The Act on the Disposition of this case does not provide for the definition of "site" under the relevant Act.

The term "site" in the Korean language advance means "land prepared to build a building or to create a road".

section 3.

2) The requirement of taxation under the principle of no taxation without law or the requirement of non-taxation or tax exemption is denied.

The interpretation of the tax law must be interpreted in accordance with the text of the law, unless there are special circumstances.

Category*

***The Director of the Tax Office

June 27, 2018

July 18, 2018

1. The plaintiff's claim is dismissed.

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

On December 1, 2016, the imposition of capital gains tax of KRW 73,654,306 (including additional tax) attributed to the Plaintiff for the year 2015 by the former defendant of the Gu office shall be revoked.

1. Details of the disposition;

A. On November 13, 2009, the Plaintiff: (a) purchased 34-7 m2,36 m2 (hereinafter referred to as “land 1”); (b) on January 18, 2010, 34-8 m2, 684 m2 (hereinafter referred to as “the instant land 2”); and (c) newly built 3 m2 on the same ground as the images of the attached Form 2; (d) on February 29, 2015, 194, 245, 850 won (land 872,629,000 + 321,616,850 won for the instant land 200 m25 m2; and (e) on the ground that the Defendant acquired the instant farmland m25 m200 m2,06 m25 m2,015 m20 m2,06 m2,015 m2.

[Ground of recognition] Facts without dispute, Gap evidence 1 and 2 evidence 1, 2, 3 through 10, Eul evidence 1 to 5, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the land Nos. 1 and 2 of this case is essential for the use of a mushroom farming company by performing not only three settlement areas for mushroom farming companies but also the surrounding concrete packaging areas as access roads, it is not allowed to expand or analogically interpret without permission. In particular, it is in line with the principle of tax equity to strictly interpret that it is clearly preferential provisions among the requirements for reduction or exemption (see, e.g., Supreme Court Decision 2010Do1191, Jan. 27, 201). Article 27(1) of the Enforcement Rule of the Restriction of Special Taxation Act provides that farmland pursuant to Articles 66(4) and 67(3) of the Enforcement Decree of the Restriction of Special Taxation Act shall be land used for cultivation without relation to the land category on the public cadastral book, and it shall include farming clubs, composts, composts, acquisitions, branches, roads, etc. directly necessary for farmland management.

Meanwhile, according to subparagraph 1 (b) of Article 2 of the Farmland Act, the paddy field, paddy field, orchard, and other land actually used as farmland cultivation area or for improving land used as farmland or for growing perennial plants, and the site for facilities prescribed by Presidential Decree, which are facilities installed on the above land as farmland. Article 2 (3) of the Enforcement Decree of the Farmland Act provides that "any facilities prescribed by Presidential Decree referred to in subparagraph 1 (b) of Article 2 of the Farmland Act, which are fixed in subparagraph 2 (a) of Article 2 of the Enforcement Decree of the Farmland Act, refers to ancient temperature, mushroom growing company and vinyl, and its appurtenant facilities prescribed by Ordinance of Ministry of Agriculture, Food and Rural Affairs" in item (b) of item (b

However, Article 3(2) of the Enforcement Rule of the Farmland Act provides that "a appurtenant facilities prescribed by Ordinance of the Ministry of Agriculture, Food and Rural Affairs (hereinafter referred to as "the Enforcement Rule of the Farmland Act"), which are installed adjacent to the relevant livestock shed or insect breeding shed, refers to any of the following facilities directly used for a series of production processes, such as raising, managing, and shipping livestock or insects." However, Article 3(1) of the Enforcement Rule of the Farmland Act provides that "a appurtenant facilities prescribed by Ordinance of the Ministry of Agriculture, Food and Rural Affairs under Article 2(3)2(a) of the Enforcement Rule of the Farmland Act, which are installed adjacent to the relevant fixed greenhouse, mushroom cultivation shed, and plastic greenhouse, mean any of the following facilities directly used for a series of production processes, such as cultivating, cultivating, managing, and shipping agricultural or perennial plants, and some of the facilities are limited to the total floor area:

1. Facilities directly necessary to cultivate crops or perennial plants in the relevant fixed greenhouse, mushroom cultivation room, mushroom cultivation room, place of business, etc., such as boiler, liquid tank, spawn cultivation facility, farming materials and agricultural products storage room, place of business, etc.;

3. In light of the principle of strict interpretation of the preferential provisions on tax reduction and exemption and the relevant Acts and subordinate statutes as to facilities (limited to those with a total floor area of not more than 33 square meters, and those not for residential purposes) installed for the management of agricultural products or perennial plants cultivated in a fixed greenhouse, mushroom cultivation shed, or greenhouse, the area of which is not less than 6,00 square meters determined and publicly announced by the Minister of Agriculture, Food and Rural Affairs, and in light of the size and form of remaining land excluding the settlement area of mushroom farming shed for the instant case No. 1 and No. 2 land in the instant case and No. 1 and No. 2 land in light of the principles of strict interpretation of the preferential provisions on the preferential provisions on tax reduction and exemption and the relevant Acts and subordinate statutes, it is difficult to recognize that the portion of land No. 1 and No. 2 land, excluding the settlement area of mushroom farming sheds, livestock products production facilities prescribed by Presidential Decree, is included in "agricultural and livestock products production facilities prescribed by Presidential Decree" under Article 27 (1) of the Enforcement Rule of the Restriction of Special Taxation Act.

4) Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.