Seoul Administrative Court 2015Gudan54080 ( October 21, 2015)

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If the site is left unattended for 13 years, it is difficult to regard it as temporary absence from social norms.

Unless it is merely an act of pretending temporary cultivation to be exempted from capital gains tax as used for any purpose other than crops cultivation for a considerable period prior to the transfer, it shall not be deemed as farmland at the time of transfer.

Article 66 of the Enforcement Decree of the Restriction of Special Taxation Act: Reduction or exemption of transfer income tax for self-Cultivating farmland

2015Nu5775 Revocation of disposition of imposing capital gains tax and special rural development tax.

○ Kim

○ Head of tax office

Seoul Administrative Court Decision 2015Gudan54080 decided August 21, 2015

January 8, 2016

January 22, 2016

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance court shall be revoked. The imposition of the capital gains tax on the Plaintiff on September 18, 2014 by the Defendant and the imposition of the capital gains tax on the Plaintiff on September 18, 2011 shall be revoked.

1. Quotation of the reasons for the judgment of the first instance;

This judgment is based on the reasoning of the judgment of the court of first instance, except for dismissal or addition of the following matters, and thus, it is based on Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

(1) On the third side, the following shall be added:

The concept of “farmland at the time of transfer in which capital gains tax is reduced or exempted” includes temporary resting land, and “temporary resting land” means farmland if the cause of farming impairment is removed even if it was temporarily used for other purposes. Therefore, even if the entire land of this case was not used as farmland for about 13 years, it is reasonable to view that the said land was farmland at the time of the transfer as farmland because of the growing of Do Kim Jong, which was restored to farmland around June 201 after crops were planted and restored to farmland before October 201, and thus, it is reasonable to view that the land of this case was farmland at the time of the transfer as farmland at the time of temporary resting due to seasonal factors.

(b) Related statutes;

as shown in the annex. "

(2) Part 3 (B) shall be changed to "C".

(3) On the third and subsequent pages 9, the following shall be added:

In addition, the issue of whether a temporary holiday is in a state of temporary absence should be deemed a state of temporary absence if it appears that the cause of a disaster occurred if it was removed in light of various circumstances, and if it was transferred under such state of absence, it should be deemed a transfer of farmland (see, e.g., Supreme Court Decisions 97Nu706, Sept. 22, 1998; 97Nu706, Sept. 22, 1998). However, if it was used for any purpose other than growing crops for the extended period prior to the transfer, and it was merely the act of pretending temporary cultivation to be exempted from capital gains tax, it shall not be deemed the actual farmland at the time of transfer (see, e.g., Supreme Court Decisions 2004Du5003, Jun. 23, 2005; 2007Du1668, Apr. 12, 2007).

In 201, e.g., e. 4 pages 14 to 16, as follows:

“The Plaintiff submitted the evidence to support the continuous self-reliance on the entire land of this case i.e., evidence Nos. 17-1, 2 (Sales Date) and No. 19-1 through 6 (Performance Inquiry) as evidence to support the Plaintiff’s continuous self-reliance on the entire land of this case. However, the Plaintiff’s purchase of agricultural chemicals, etc. in its name by Kim △△△△, not the Plaintiff, and the Plaintiff’s purchase of agricultural chemicals, etc. in its name, and shipment of agricultural crops, such as the market price trend, cannot be deemed as evidence to prove the Plaintiff’s self-reliance. Rather, according to the records of No. 15 (Certificate of Registration of Agricultural Business Entities) submitted by the Plaintiff, Kim △△△△, the Plaintiff’s ASEAN, as evidence, verified that he was engaged in agriculture while owning farmland of approximately KRW 9,725 square meters in size than the entire land of this case. All of the above details appear to be a transaction for self-reliance on the land of this case, not the Plaintiff.

④ Ultimately, since from around April 8, 2010, it is confirmed that the Plaintiff was unable to use the remaining land as farmland, from around 1998 to around April 8, 2010, the Plaintiff left the site without growing crops for a considerable period of time for approximately 13 years, it is difficult to view the remaining land as a temporary suspension from ordinary social norms. Even if the Plaintiff’s assertion was partially accepted, it is deemed that the Plaintiff’s worship, wave, etc. were planted until October 2010, it is merely a temporary planting of crops for two months prior to the transfer, and thus, it does not constitute a disguised act for obtaining the reduction or exemption of crop compensation and capital gains tax.”

Part 4, paragraph 16, added to the following:

“3) Therefore, the Plaintiff’s assertion that the instant remaining land was actually farmland at the time of transfer is a temporary closure due to seasonal factors is without merit.

2. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.