Daegu District Court 208Guhap824 (O. 21, 2009)

Whether or not a person has planted a loss for not less than three years;

Although the Plaintiff requested another person to cultivate lost trees, it is difficult to deem that the Plaintiff cultivated the land because it appears that the Plaintiff cultivated the land, such as growing vegetables, etc. on the land while managing lost trees.

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

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance is revoked. On July 1, 2007, the defendant cancels the disposition of imposition of capital gains tax of KRW 62,256,720 on behalf of the plaintiff.

1. Circumstances of the disposition;

A. The Plaintiff, on November 11, 1999, acquired the actual tax amount of 383-2 3,306 m2 (hereinafter referred to as “instant land”) from the former Bright, the Plaintiff transferred it to the Korea National Housing Corporation on October 12, 2004.

B. On May 28, 2004, the Plaintiff acquired farmland of one thousand square meters prior to 150 m2, 150 m2, 917 m2, and 151-1, 554 m2, prior to 198-6 m2, and 198-7 m2, prior to 198-7 m2.

C. On June 30, 2005, the Plaintiff filed a report on the tax base of transfer income with the content that the transfer of the instant land was exempt from taxation pursuant to Article 89 of the Income Tax Act (amended by Act No. 7579 of July 13, 2005) in a case where the Plaintiff transferred farmland with a self-fluence for not less than three years and substitute land.

D. On July 1, 2007, the Defendant determined that the Plaintiff did not actually own the instant land, and imposed capital gains tax of KRW 62,256,720 on the Plaintiff (hereinafter “instant disposition”).

E. On September 20, 2007, the Plaintiff appealed to the National Tax Tribunal, but was dismissed on December 21, 2007.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Eul evidence 1-1, Eul evidence 2-1, Eul evidence 2-1, Eul evidence 2-2, the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

(a)the master of the plaintiff;

In determining whether farmland is self-afforestation, if multiple farmers exist, it is necessary to determine who is full-time engaged in the principal cultivation after determining what the main purpose of the farmland in question is, and determine who is whether the farmland in question is the farmland in question, and whether the farmland in question constitutes the farmland in question by installing decilation and electric facilities until the transfer of the land in this case. However, although Korea-U.S. has cultivated the farmland in this case, it is limited to Korea-U.S. temporary and temporary farming until the land in this case, other than the portion of the land in question, in which Korea-U.S. has been permitted by the Plaintiff, with the permission of the Plaintiff, is limited to Korea-U.S. temporary and temporary farming. The land in this case is an orchard for the main purpose of the cultivation of Korea-U.S. land in this case, and the Plaintiff acquired the land in this case and transferred 300 weeks of trees buried on November 1, 199, and thereafter, the land in this case is unlawful, notwithstanding the premise that the Plaintiff cultivated the land in this case.

(b)a recognition;

(1) 원고는 남편인 국○복이 ●구 ●구 동호동 6-2 소재 거주지에서 인쇄 및 도장업 체인 ▢▢사를 운영하다가 1997. 11.경 사망하자, 1999. 12. 10. ▢▢사의 사업자등록 명의자를 원고로 변경한 다음 현재까지 김○남을 고용하여 ▢▢사를 운영하고 있다.

(2) On November 11, 1999, the Plaintiff acquired the instant land from ○○○, which had been a member of the same fraternity as her husband, and was tried to purchase the instant land on November 11, 199. On the 25th of the same month, the Plaintiff engaged in the activities such as stringer, pumping machine, electric facilities, etc. around that time, and making ditches. The Plaintiff purchased 380 shares of the instant land from Ma○ on December 20, 200 and additionally tried to purchase 380 shares of the instant land from Ma○ on December 20, 200 when the said trees were dead most. Meanwhile, on the farmland ledger against the Plaintiff, it is written that the Plaintiff was growing the instant land as of October 5, 200, and the agricultural products that were stationed.

(3) With ○○ on March 3, 200, the Plaintiff drafted a land management agreement with the purport that “the Plaintiff is equipped with a 300 pactine tree, 2 pacter water pumping machines, and 1/2 out of the first time of retirement, and 1/2 of the agricultural machinery cost, and that “the land manager shall manage the instant land from February 1, 200,” and that when the instant land is sold and purchased, all of the above ground objects shall belong to the Plaintiff without asserting the ownership of the above ground objects and others, and the agricultural compensation expenses shall belong to the Plaintiff if developed.”

(4) After this, Hansung established a vinyl with a size of 532 square meters on the instant land, and cultivated the lost water and vegetables on the instant land, excluding the land inside the said vinyl and the part of planting trees, and the remaining land except the portion of planting trees, etc., and from September 21, 2002 to December 21, 2004, the period from September 2002 to December 21, 2004, when the vinyl was removed, paid the charges for the use of the electricity generated from the instant land using the deposit account in the Agricultural Cooperatives for the first half month.

(5) On August 25, 2003, the Korea National Housing Corporation, which is the project implementer, has accepted the land and the land in the case on September 21, 2004, as the former rate of two housing site development projects were implemented, and the Plaintiff received from the project implementer the land compensation amount of KRW 467, 137, 80, 137, 19, 142, 50, and the amount of agricultural compensation amount of KRW 19, 147, 620 on November 2, 2004. The details of the land and the amount of compensation amount are as follows.

(6) The Plaintiff paid KRW 19, 142, 500, out of KRW 15,300, and KRW 000 to the Hansung, and the farming compensation was not paid as a reason for the agreement on the management of the above land. As stated in the Plaintiff, the agreement on the management of the above land was concluded to compel adjustment of the content that “The Plaintiff would pay KRW 5,500,000 to the ○○○○ upon filing a lawsuit seeking a claim for the return of farming compensation with the district court 2005Da11035, Nov. 16, 2006,” which stated that “The Plaintiff would pay KRW 5,500,000 to the ○○○ on December 31, 2006.”

(7) On the other hand, on April 11, 2005, the plaintiff stated on the purport that "the fact that ○○○○ in the Dongdong Police Station was investigated on the case where the plaintiff filed a complaint with forgery of a private document, etc., and the plaintiff requested cultivation of ○○ in the auction room, etc. 2 times on December 1999, but it was about 600 share price, but it was about 600 share price at around March 200 on the wind of a lot of bamboo, and it was confirmed that ○○, which was not rent, did not receive 300 son tree 300, and that he would not receive compensation for farming in the case where he cultivated the plaintiff's land without compensation."

[Ground of Recognition] Facts without dispute, Gap evidence 3-1 through 16, Gap evidence 6, 8, 9, Gap evidence 13-4, 5, Eul evidence 19, Eul evidence 1-2 through 5, Eul evidence 2-4 through 9, Eul evidence 5, Eul evidence 6-1, Eul evidence 11-2, Eul evidence 11-3, the whole purport of the pleadings, the whole arguments, and the whole purport of arguments

C. Determination

The term "self-cultivation of farmland" includes not only the case in which a person directly cultivates but also the case in which a person is employed to cultivate another person under his/her own account and responsibility, or has a family member living or living together with the same household make a cultivation (see, e.g., Supreme Court Decisions 89Nu7412, May 11, 1990; 87Nu706, Mar. 8, 198; 94Nu996, Oct. 21, 1994; 90Nu6, Oct. 21, 1994); however, it does not constitute the case in which a transferor who asserts it actively proves it (see, e.g., Supreme Court Decision 90Nu639, May 22, 1990).

살피건대, 앞서 본 바와 같이 이 사건 토지에 원고가 2차례에 걸쳐 매실나무 680주 를 식재하였고, 스프링클러와 양수기 등을 설치하고 성토작업을 하였으며, 농지원부에 원고가 이 사건 토지를 자경하는 것으로 기재되어 있으나, 원고가 이 사건 토지에 매실나무들을 재배하는 등으로 이 사건 토지를 경작하였다는 원고의 주장사실에 부합하는 듯한 갑 제4호증의 1 내지 20, 갑 제5, 7호증, 갑 제12호증의 3, 갑 제17, 18, 20호 증의 각 기재 및 제1심증인 추성완의 증언은 믿기 어렵고, 달리 위 주장사실을 인정 할 증거가 없으며, 오히려 위 인정사실에 나타나는 다음과 같은 사정, 즉 ① 원고가 매실나무 300주를 배○현으로부터 매수한 후 불과 4개월 만에 한○성에게 이 사건 토지 의 경작을 의뢰하면서 한○성과 사이에 '토지관리약정서'를 작성한 점, ② 한○성이 원고로부터 이 사건 토지의 경작을 의뢰받은 후 이 사건 토지에 532㎡ 상당의 비닐하우스를 세우고 위 비닐하우스 내부 및 매실나무가 심어져 있는 부분을 제외한 나머지 토지에 유실수 및 채소 등을 재배하여 온 점, ③ 원고가 이 사건 토지상 지장물에 대한 보상금 19, 142, 500원 중 15, 300, 000원을 한○성에게 지급한 점, ④ 원고는 이 사건 토지 취득 이전부터 이 사건 토지의 양도 당시까지 ▢▢사를 운영하여 왔고 이 사건 토지를 경작하여 수입을 얻어야 할 경제적 필요는 없었던 것으로 보이는 점, ⑤ 원고가 2005. 4. 11.자 경찰 조사에서 2000. 3. 한○성에게 이 사건 토지의 경작을 의뢰하였고, 임대료는 받지 않았다고 진술한 점 등을 종합하여 보면, 원고는 2000. 3.경 한○성에게 원고가 식재한 매실나무들을 관리해 주는 조건으로 이 사건 토지의 사용을 허락하였고, 한○성이 그 무렵부터 이 사건 토지가 양도될 때까지 위 매실나무들을 관리하면서 이 사건 토지에 채소 등을 재배하는 등으로 이 사건 토지를 경작한 것으로 봄이 상당하므로, 원고가 이 사건 토지에서 매실나무들을 재배함으로써 이 사건 토지를 경작하였다는 원고의 주장은 이유 없고, 따라서 이 사건 토지가 '3년 이상 자경한 농지'에 해 당하지 않음을 이유로 한 이 사건 처분은 적법하다.

3. Conclusion

If so, it is reasonable to dismiss the plaintiff's claim for objection, because there is no reason to do so, the judgment of the court of first instance is identical to that of the court of first instance, and the plaintiff's appeal is without reason, so it is same as the disposition.