Early High Court Decision 2009Du4274 (No. 31, 2010)

It is difficult to see that a direct cultivation does not constitute farmland that has been directly cultivated for at least eight years.

Since it is inevitable to concentrate on a public official's duty, it seems that the person has cultivated the farmland on the weekend or holiday. In light of the area of the farmland in possession, the disposition rejecting a request for correction on the ground that it does not constitute "farmland cultivated directly for at least eight years" because it is difficult to view such a degree of labor force in light of the area of the farmland in possession.

2010Guhap1568 Disposition rejecting a request for rectification

AntiA

O Head of tax office

1. The plaintiff's claim is dismissed.

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

The defendant's rejection disposition against the plaintiff on September 17, 2009 is revoked.

1. Details of the disposition;

A. On December 8, 1983, the Plaintiff acquired the land owned by the Plaintiff including each of the instant land on December 8, 1983, 172-1, 538 square meters, 173-1, 774 square meters as of May 9, 1984, and 151, 969 square meters as of May 8, 1989 (hereinafter referred to as the “each of the instant land”). However, on October 13, 2008, the Plaintiff transferred eight parcels of land owned by the Plaintiff, including each of the instant land, and its obstacles, to the Korea Land Corporation for Public Works in accordance with the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects.

C. On December 24, 2008, the Plaintiff reported the calculated tax amount at the time of preliminary return on the tax base of transfer income belonging to the transfer of the above eight parcels of land to the Defendant at KRW 817,918,560, but on March 9, 2009, the Plaintiff filed a request for correction to the effect that the transfer income tax shall be reduced by 86,379,890 won under Article 69 of the Act on Special Cases Concerning Taxation, on the premise that each of the instant parcels of land was directly cultivated for at least eight years, among the above eight parcels of land.

D. On September 17, 2009, the Defendant rendered a disposition rejecting the Plaintiff’s request for correction of transfer income tax (hereinafter “instant disposition”) on the ground that the Plaintiff had cultivated each of the instant land directly for not less than eight years, on the ground that it does not meet the requirements for reduction or exemption.” [The grounds for recognition], [the fact that there is no dispute, Gap’s 1 and 2, evidence Nos. 3-1 through 3, and the purport of the body before pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Since the acquisition of each of the lands of this case, the Plaintiff became a farmer in each of the lands of this case through collaboration among all family members living together with their wife, mother and female, including the Plaintiff, until October 13, 2008. In particular, the Defendant’s disposition rejecting the Plaintiff’s request for correction of capital gains tax is unlawful, since it received temporary leave from July 200, 200, which was one year before retirement as a police officer, and transferred to the farmer company from July 2008, which was the first day before the date of the transfer of each of the lands of this case, since the Plaintiff had cultivated each of the lands of this case directly for 8 years or more, and thus, it should be exempted from capital gains tax pursuant to Article 69(1) of the Restriction of Special Taxation Act. Nevertheless, the Defendant’s disposition rejecting the Plaintiff’s request for correction of capital gains tax is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Article 69(1) of the Restriction of Special Taxation Act, Article 66(1) and Article 66(1)12 of the Enforcement Decree of the Restriction of Special Taxation Act provide that the transferor has resided in a Si/Gun/Gu where farmland is located or in a Si/Gun/Gu adjacent thereto, and has cultivated directly for not less than eight years from the time he/she acquired the relevant land until the time he/she transferred the land. The "direct cultivation" means that the transferor engages in cultivating crops or growing perennial plants on his/her own farmland or growing or growing them with his/her own labor. In this case, "self's own labor force" is interpreted as not having any direct labor force input by the landowner in light of the explicit statutory provisions, etc. (see, e.g., Supreme Court Decision 2010Du8423, Sept. 30, 2010). The requirements for reduction or exemption of the above provisions should be proved by the transferor, who is claiming for the reduction or exemption of the above provisions.

A) The facts that partially favorable to the Plaintiff’s assertion was partially favorable

According to the statements of Gap evidence 4, Gap evidence 6-2, 3, Gap evidence 8, 9, and 11 and the testimony of the witness BB, the following facts can be acknowledged:

① The Plaintiff resided in the Gunpo-si located in the same area as the location of each land of this case for at least eight years. ② The Plaintiff joined the CCC Cooperatives on March 30, 1983 as a member of the Plaintiff. ③ In the farmland ledger, the Plaintiff stated that the Plaintiff was less than 969 square meters in the Dopo-dong 151 square meters among each land of this case. ④ On April 13, 2009, the Korea Land and Housing Corporation paid agricultural compensation under the premise that the Plaintiff is self-fluoring each land of this case. ⑤ The Korea Land and Housing Corporation paid farmland management members, the Ripo-dong 173-3, the head of the Tongpo-dong 173-4, the Plaintiff, including each land of this case, and the head of the Tongpo-dong 173-4, the Plaintiff directly cultivated the land of this case. ⑤ The witnessB testified testified in this court to the effect that the Plaintiff was self-fluoring each land of this case, or was inconsistent with the Plaintiff’s assertion.

However, the following facts are also acknowledged in light of the aforementioned evidence, Gap evidence 10, Eul evidence 2, Eul evidence 2, and witnessB's testimony as a whole.

① From December 31, 1970 to June 30, 2001, the Plaintiff served as a police officer for a period of 30 years. ② From September 29, 1992 to July 12, 1994, the Plaintiff resided in the GG Hadong-gu, Sungnam-si, Sungnam-si, 1994, within the ownership period of each of the instant lands. ③ The farmland ledger provides that only the amount of 151 Si FFdong 151 and 969 square meters out of each of the instant lands shall be limited to the farmland ledger, and there is no indication as to the remainder of the land. ④ The Plaintiff prepared the farmland ledger only on September 15, 2004, where 15 years elapsed since the Plaintiff acquired the FFdong 151 and 969 square meters, and ② the witness B stated the Plaintiff’s family member as the Plaintiff’s mother’s family member at each of the instant land.

C) Sub-decision

Examining these facts comprehensively in light of the legal principles as seen earlier, the Plaintiff appears to have cultivated on weekends or holidays because it is inevitable for the Plaintiff to concentrate on his duties as a public official. In light of the area of farmland owned by the Plaintiff, it is difficult to view that the Plaintiff had 'direct cultivation' with the same degree of labor force in light of the area of farmland owned by the Plaintiff, and even if the Plaintiff’s family provided the Plaintiff with the labor force required for the farming company during the period of his/her police officer, the Plaintiff’s family labor force cannot be deemed as the Plaintiff’s labor force. In addition, although the Plaintiff asserted that he/she provided the Plaintiff with the labor force required for the farming company since one year prior to his/her retirement. However, the Plaintiff did not submit all objective evidence on his/her own landscape, such as the purchase details of agricultural materials, such as fertilizers and agrochemicals necessary for the direct cultivation of farmland, the details of the production of farmland, etc. for the period of his/her own cultivation, and there is no lack of evidence to acknowledge that the Plaintiff directly acquired the land in this case for more than eight years.

3) Therefore, the instant disposition that rejected the Plaintiff’s request for rectification of transfer income tax without applying the reduction or exemption provision on the ground that the instant land does not constitute “farmland cultivated directly for not less than eight years.”

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.