Case Number of the immediately preceding lawsuit
Jeonju District Court-2013-Gu 200645 ( November 12, 2014)
Title
not meeting the requirements for direct cultivation for at least eight years;
Summary
In determining the self-defense for 8 years, the meaning of "self-defense" cannot be deemed to include cases in which another person is employed under his responsibility and calculation, or where a family member living or living together with the same household is engaged in cultivation, such as existing precedents, and it shall not be deemed that more than half of the farming work must be in charge of the person's own possession, and it shall meet the requirements of "direct cultivation".
Related statutes
Article 69 of the Income Tax Act
case Gwangju High Court (former District Court)-2014-Nu-104 ( April 13, 2015)
Plaintiff, Appellant
In depth 00
Defendant, Appellant00 Head of Tax Office
Seoul District Court-2013-Guhap-200645 ( November 12, 2014)
Conclusion of Pleadings
March 16, 2015
Imposition of Judgment
April 13, 2015
Text
1. Revocation of a judgment of the first instance;
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
Purport of claim and appeal
1. Purport of claim
The Defendant’s transfer income tax and additional tax on May 15, 2012 reverted to the Plaintiff in 2011.
The imposition of KRW 209,690,000 shall be revoked.
2. Purport of appeal
The same shall apply to the order.
Reasons
1. Details of the disposition;
A. On July 24, 1971, the Plaintiff owned an OO-si 00 00 % 000 %
14,083 square meters (hereinafter referred to as "00 square meters when referring to an administrative district") on the registration of real estate.
Upon completing the registration of ownership transfer under the Act on Special Measures for the Management of Ownership, the said land divided into 619-4 Forest and 2,128 square meters on February 28, 1998 and 000-0 Forest and 403 square meters on March 21, 2001, and 11,522 square meters on forest and 00 square meters on March 21, 2001, and thereafter the said 00 Ri 619 Forest and 619 forest and 00 square meters on November 1, 201 were changed to a land category before and after November 1, 201, the said 00 Ri 611,522 square meters prior to 619 square meters.
B. Meanwhile, the Plaintiff completed the registration of transfer of ownership on the ground of sale on October 20, 1961 with respect to the forest land 4,383 square meters on July 24, 1971 (hereinafter the above 00 Ri 619 square meters and 11,522 square meters and 780 square meters and 4,383 square meters in total).
C. On September 30, 201, the Plaintiff asserted that the transfer of each of the instant land to a stock company 000 on September 30, 201 (total transfer value of KRW 1,398,090,00, total acquisition value of KRW 330,632,840) constituted farmland for which each of the instant land was cultivated directly for eight years or more while filing a preliminary return on the tax base of capital gains to the Defendant on November 30, 2011, and filed an application for reduction or exemption of capital gains tax under the Restriction of Special Taxation Act.
D. The defendant cannot be deemed to have cultivated each of the lands of this case directly for not less than eight years.
On May 15, 2012, the Plaintiff excluded capital gains tax reduction and exemption and imposed a total of KRW 209,690,000 on the Plaintiff for capital gains tax and additional tax belonging to the year 2011 (hereinafter “instant disposition”).
E. Accordingly, the Plaintiff filed a request for review with the Board of Audit and Inspection on August 17, 2012, but the Board of Audit and Inspection decided to dismiss the request on the same ground as the Board of Audit and Inspection dismissed on May 8, 2013.
[Ground of recognition] The facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence No. 1, Eul evidence No. 2-1 through 4 (Evidence No. 1 of the provisional lot number includes numbers; hereinafter the same shall apply), the purport of the whole pleadings
2. Summary of the plaintiff's assertion
'Direct farming' as a requirement for reduction or exemption of capital gains tax under the former Restriction of Special Taxation Act includes not only the case of direct cultivation by himself, but also the case of cultivation by employing another person under his own account and responsibility, or the case of cultivation by having a family member living or living together with another person. Since the Plaintiff acquired ownership of each land of this case from July 24, 1971 to July 198, 198 and directly cultivated it for not less than eight years, the transfer of each land of this case constitutes reduction or exemption of capital gains tax under the former Restriction of Special Taxation Act. Accordingly, the Plaintiff’s application for reduction or exemption of capital gains tax on each transfer of each land of this case is unlawful, and the disposition of this case for which capital gains tax was imposed is unlawful.
(1) From around 1975 to 1978
1) On May 21, 2012, the Plaintiff: (a) the copy of the land register; (b) the representative of the 000 stock company, as to the land of 619:
An in-house director shall be deemed to have completed the registration of ownership transfer for reasons of sale on March 28, 2012, and for land 700%)
On May 21, 2012, the Plaintiff was registered as a stock company 000 stock company on May 21, 201 and completed the registration of ownership transfer based on the sale as of April 27, 2012.
Pursuant to the OO District Agricultural Development Project Plan, a waterway of 4,126 square meters among each land of this case
The permission for land reclamation and deforestation was granted for the creation of a dry field farm. The project was completed on March 31, 1976 without the formation of a waterway under the above plan, but the Plaintiff developed each of the instant land into soil suitable for dry field farmers around 1975.
(2) From around 1978 to 1980
The Plaintiff’s scooma from around 1978 to 1980 on the part of the land of this case developed.
Freshed fish farming.
(3) From around 1981 to 1985
The plaintiff cultivated a horse in part of each land of this case, while landscaping from around 1981.
The tree seedlings and tree seedlings, which are lost trees, began to be raised.
(4) From around 1985 to 1988
The Plaintiff received technical guidance from Kim Dong-dong Kim, and had a didin farmer on each land of this case.
3. Related statutes;
It is as shown in the attached Table related statutes.
4. Determination
A. Interpretation of capital gains tax reduction or exemption provisions under the Restriction of Special Taxation Act
1) Article 69(1) of the former Restriction of Special Taxation Act prior to the amendment by the Enforcement Decree of February 9, 2006 stipulates that the tax amount equivalent to 100/100 of the transfer income tax shall be reduced for the income accruing from the transfer of land prescribed by the Presidential Decree among the land which is subject to agricultural income tax, which is directly cultivated by a resident prescribed by the Presidential Decree residing in a location of the land for not less than eight years, but the same Act and its Enforcement Decree do not separately provide for the concept of "direct cultivation" or "self-arable", which is the requirement for reduction or exemption of transfer income
The former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329, Feb. 9, 2006) amended thereafter
Article 66 (12) of the Act provides that "Direct farming" means that a resident is engaged in cultivating crops or growing perennial plants on his/her own farmland at all times or is engaged in cultivating or cultivating at least 1/2 of farming work with his/her own labor (However, the former Enforcement Decree of the Restriction of Special Taxation Act, amended on February 4, 2009, stipulates the same contents in Article 69 (13) of the same Act).
Before the enforcement decree provisions are newly established, the Supreme Court of Korea has ‘direct cultivation' or ‘person'.
The meaning of 'arable' is interpreted to include not only cases where the transferor cultivates water by hand, but also cases where the transferor employs and cultivates other persons under his responsibility and calculation, or causes a family member living or living together with the same household to cultivate it (see, e.g., Supreme Court Decisions 92Nu4642, Oct. 9, 1992; 2003Du2465, May 30, 2003; 94Nu996, Oct. 21, 1994).
However, the term "direct cultivation" under the newly established provision of the Enforcement Decree as above means that a resident engages in cultivating or cultivating crops or perennial plants on his own farmland at a certain time or by cultivating or cultivating 1/2 or more of them with his own labor, and its meaning is clearly defined. According to the interpretation of the previous Supreme Court precedents, the legislative intent of the newly established provision aims to solve the problems such as the reduction of capital gains tax without actually engaged in farming, and it is necessary to strictly interpret it in accordance with the law as well as tax requirements, tax laws and regulations as well as tax exemption requirements, reduction of capital income tax, and strict interpretation. In full view of the above, it cannot be deemed that the meaning of the above "self-help" includes cases where a resident employs another person under his responsibility and calculation, or causes a person who lives in the same household to cultivate them with 1/2 or more of them, and it shall be deemed that 20 or more of the above "one-half of the above works directly engaged in farming by 1/20 or more of the total number of members of the lower court" as 20.
2) As to this, the Plaintiff’s direct cultivation from February 9, 2006, as amended by the Enforcement Decree, even if so.
Even if the meaning of "direct farming" is interpreted as one-half or more of the farming operations, the plaintiff asserts that the transfer income tax of this case should be reduced or exempted inasmuch as the plaintiff already employs and cultivates another person under his responsibility and calculation in 1988 prior to the provision of the meaning of "direct farming" in the revised Enforcement Decree, or has the family members living or living together with the same household cultivate, including the case where he has cultivated another person under his responsibility and calculation.
In addition, Article 10 of the Addenda to the Enforcement Decree of the above Act explicitly provides that "the amended provisions of Article 66 (12) shall apply to the transfer after the enforcement of this Decree from the division to the transfer after the enforcement of this Decree", each of the above cases around 2011.
It is reasonable to have sufficiently known that new regulations apply to the Plaintiff who transferred land. Even if the Plaintiff trusted the tax reduction or exemption, etc. according to the interpretation of the previous provisions, this is merely merely merely a simple expectation, and it cannot be viewed as a substitute for the right to acquire land, and therefore, the Plaintiff’s above assertion is without merit.
(b) the burden of proof;
Even if it is recognized that land has been cultivated as farmland in the requirements for reduction and exemption of capital gains tax;
However, it is not presumed that its owner's own gross facts are not presumed, and the transferor who asserts such facts must prove the fact (see, e.g., Supreme Court Decision 92Nu11893, Jul. 13, 1993).
C. Determination as to whether the Plaintiff’s direct cultivation requirements are met
The plaintiff shall serve as the assistant principal and principal of an elementary school for the pertinent period as specified in the following table:
Therefore, in order to meet the direct farming requirements as the requirements for reduction or exemption of the transfer income tax of this case during the period alleged by the Plaintiff, the Plaintiff should be deemed to have cultivated or cultivated not less than 1/2 of the farming work with his own labor for not less than 8 years on each of the land of this case. Therefore, this paper will examine this issue.
1) Facts of recognition
A) From October 20, 1968 to January 22, 1993, the Plaintiff’s father 00 resided in 00 to April 31, 198 and acquired the Plaintiff’s status as agricultural cooperative members on December 31, 198, while residing in 00 to 430 neighboring each of the instant lands. The Plaintiff’s wife from October 20, 1968 to May 21, 2005
In possession, the plaintiff also resided in the above residence from December 20, 1968 to June 12, 2006 (excluding the period from December 28, 1984 to September 7, 1986).
B) The Plaintiff served as the assistant principal and principal of an elementary school during the pertinent period as follows.
Whether or not the position of workplace is re-established;
An additional assistant principal of 00 elementary schools from September 1, 1968 to August 31, 1976
An additional assistant principal of 00 elementary schools from September 1, 1976 to February 28, 1981
An additional assistant principal of 00 elementary schools from March 1, 1981 to February 28, 1982
An additional assistant principal of 00 elementary schools from March 1, 1982 to August 31, 1983
The principal of the 00 elementary school from September 1, 1983 to August 31, 1986
Between September 1, 1986 and February 28, 1991, the COO elementary school teachers.
00 elementary school principals from March 1, 1991 to February 28, 1995
C) The Plaintiff purchased farming materials from around 2004 to May 3, 2012 from 00 to 00 agricultural cooperatives, and according to the farmland ledger, the Plaintiff stated that the land of this case was cut down from May 28, 1991.
D) According to the result of appraisal commission with respect to appraiser Kim 00 by the court of first instance, land of 00No619
Around 1978, 64.91% of the total area was reclaimed, 67.07% of the total area was reclaimed in around 1985, and 72.51% of the total area was reclaimed in around 1986 (the remainder of each part, other than the reclaimed part, is presumed to be forest land), it is difficult to confirm the state of planting planted trees or the types of crops, etc., and it is difficult to confirm the type of crops, etc. as the whole area was reclaimed in around 1978.
[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 12 to 15, 18, Eul evidence No. 7-1;
3) The “certificate of supply of farming materials” issued to the Plaintiff by the head of the 00 Agricultural Cooperative and KimO stated that the Plaintiff confirmed the purchase of farming materials at the 00 agricultural cooperative from January 1, 1970 to May 3, 2012, which is the date of issuance of the above documents. However, Kim 00 stated that the Plaintiff purchased farming materials from the 00 agricultural cooperative, however, at the time, there were only farming materials after 2004 and there were no previous materials. However, even after the Plaintiff continued to engage in farming activities, it was thought that the Plaintiff purchased farming materials through the NA even after he had been engaged in the purchase of fertilizers at the time, and that the Plaintiff should have proved that the previous materials should have been proved, and that there was no evidence to prove that the Plaintiff purchased the farming materials at around 2004.
- 9-
Results of the commission of appraisal to appraiser Kim00 by the court of the first instance, the purport of the whole pleadings.
2) Determination
Domins, Gap evidence 10, Eul evidence 3-1, 3, Eul evidence 3-10, 5 through 10, 5 Eul
Comprehensively taking account of the following circumstances, it is difficult to view that the Plaintiff’s direct cultivation requirements regarding each of the instant lands were satisfied, and the facts of recognition as seen earlier and the evidence submitted by the Plaintiff alone are insufficient to recognize that the Plaintiff cultivated or cultivated not less than 1/2 of the farming work with its own labor with respect to each of the instant lands, and there is no other evidence to acknowledge otherwise.
A. There is no evidence to prove that each of the lands of this case was reclaimed around 1975 as asserted by the Plaintiff, and on the other hand, according to the results of the commission of appraisal as seen above, from around 1978.
Although the fact that part of each land was reclaimed can be recognized, it cannot be said that the Plaintiff cultivated or cultivated not less than 1/2 of the farming work on each land of this case with its own labor merely because the land was reclaimed as above.
B. According to the statements made by the following relevant persons, the Plaintiff most of the instant lands.
It seems that it has been cultivated or cultivated by leasing it to others without direct cultivation.
1. In the statement of the OO tax secretary (hereinafter the statement of other related persons is the same as the statement of the O tax secretary) in this case, the reclamation of each land of this case was completed in around 1982, and the land of this case was ordered to assist themselves and EOO in the development of land. Since the land was cultivated as a dry field that was first cultivated, the plaintiff allowed the plaintiff to grow a farming house free of charge for five years from around 1982 to around 1987, the plaintiff cultivated the cultivated the land and the OO-O-O-O-O-o-O-O-O-O-O-O-O-O-O-owned cultivation of ginseng and the O-owned fish plantation. After that, there was no fact that the plaintiff cultivated each land of this case, and at the time, the plaintiff made a statement that the land of this case was cultivated in order to grow sexual seedlings due to the plaintiff's seedlings in the farmland of this case (at the time of additional investigation, however, the plaintiff's farming field was not managed the plaintiff's.
2. At the time of the middle and high school intending to memory, YO stated that YO’s mother used the Plaintiff’s ground as dry field and developed the Plaintiff’s ground as dry field for five years, and that YO’s mother did not have a farmer as an assistant principal of an elementary school at the time, and the Plaintiff stated that YO stated that she was “ why she made the Plaintiff’s statement” as to the content that she responded to the employees of the tax office.
3. The MaximumO, EO, signed a certificate of cultivation at the request of the Plaintiff or the Plaintiff’s wife in the past. However, the Plaintiff stated to the effect that the Plaintiff had cultivated each of the instant land directly without being well aware that most of them were aware that it was leased.
4. The KimO, from around 1986 to around 1988, cultivated Hudddy by leasing each of the instant lands from the Plaintiff, and after that after that of around 1988, the lease from the Plaintiff.
I stated that he had cultivated ginseng.
5. EO stated that the Plaintiff did not cultivate each of the land of this case at the time that he cultivated a Go-gu horse free of charge for three years from each of the land of this case.
6. The MaximumO: (a) leased each of the instant lands from the Plaintiff, one’s mother, and cultivated the ancient horse around 2001; and (b) from around 2002 to around 2003, the upper horse on a lease of the upper horse.
Around 204, while he cultivated a ancient horse by leasing it again, he stated that he cultivated ginseng along with the screening from around 2005 to around 201. Meanwhile, the Plaintiff directly visited himself in the past and requested him to sign on the confirmation certificate of the fact of cultivation, but he and the screening had cultivated the ancient horse, ginseng, etc. directly from around 2001 to around 201, and even before that, he stated that the Plaintiff did not sign on the said farmland because there was no fact that the Plaintiff had cultivated it directly on the said farmland.
C. The area of each of the instant lands is 15,905 square meters in total (00 square meters, 11,522 square meters in land, 00 square meters in total;
In light of the fact that the Plaintiff had worked as an assistant principal or principal of an elementary school during the cultivation period claimed by the Plaintiff, the area is large if the Plaintiff is deemed to have voluntarily cultivated more than 1/2 of the entire land farming work without any family member or other person’s aid (such as the Plaintiff, even though he/she served as an assistant principal or principal, it is merely that he/she performed the administrative work, and that classes have been completed mainly at 3:0 p.m. to 4:0 p.m. due to the characteristics of an elementary school, and thus, he/she voluntarily left after completing work at around that time and did not have any evidence to acknowledge it).
D. The plaintiff caused the plaintiff to do so in the farmland ledger of each of the lands of this case from May 28, 1991.
Since the Plaintiff’s assertion that each of the instant lands should be considered to have been self-confisced for at least ten years from that time until September 2011, it is difficult to readily conclude that the Plaintiff directly cultivated at least 1/2 of each of the instant lands solely on the ground that the said farmland ledger contains a “self-confiscing” entry. Moreover, it is difficult to believe that the said “self-confiscing” is inconsistent with the relevant parties’ statement related to the lease.
E. The Plaintiff’s purchase of farming materials as the above acknowledged facts alone
Cases
It is difficult to recognize that the direct cultivation of at least 1/2 of each land has been carried out.
D. Sub-committee
Therefore, the disposition of this case that the Plaintiff excluded capital gains tax reduction and exemption and imposed capital gains tax and additional tax on the Plaintiff is lawful on the ground that the Plaintiff cannot be deemed to have cultivated each of the land of this case directly for not less than eight years. Therefore, the Plaintiff’
5. Conclusion
If so, the plaintiff's claim shall be dismissed as without merit, and the judgment of the court of first instance shall be different from this conclusion.
Since it is unfair, it shall be revoked, and the plaintiff's request shall be dismissed, and it is so decided as per Disposition.