Changwon District Court 2014Guhap593 ( October 14, 2014)

In this case, it is difficult to deem that the farmland of this case was self-deed for more than eight years.

The disposition to impose capital gains tax after excluding the Plaintiff’s application for reduction or exemption is justifiable because the Plaintiff was engaged directly in the cultivation, etc. of crops for not less than 8 years in the instant land or was unable to deem that not less than a half of the farming work was cultivated or cultivated with his own labor.

Article 69 of the Restriction of Special Taxation Act (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

Busan High Court (Chowon) 2014Nu11215 revocation of disposition to impose capital gains tax.

AA

○ Head of tax office

Changwon District Court Decision 2014Guhap593 Decided August 14, 2014

March 27, 2015

April 29, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The transfer income tax reverted to the Plaintiff on August 1, 2013 that the Defendant rendered to the Plaintiff on August 1, 2013

The imposition of KRW 00,000,000 shall be revoked.

1. Quotation of judgment of the first instance;

The court's explanation on this case is consistent with the reasoning of the judgment of the court of first instance except for the part No. 6 of the decision of the court of first instance No. 4. 6. The reasoning for this case is as follows. Thus, the court's explanation is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

[Supplementary Use]

C. Determination

1) Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 11614, Jan. 1, 2013; hereinafter “Act”) provides that “The tax amount equivalent to 100/100 of the capital gains tax shall be reduced on the income accruing from the transfer of land among land cultivated directly by a resident living in farmland for at least eight years in the manner prescribed by Presidential Decree.”

In addition, Article 66 (13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 24368, Feb. 15, 2013; hereinafter referred to as the "Enforcement Decree") provides that "Direct farming" means that a resident is engaged in cultivating crops or growing perennial plants on his/her own farmland or growing or growing them with his/her own labor at least half of farming work."

2) Under the principle of no taxation without the law, the interpretation of tax laws and regulations is impermissible, barring any special circumstance, and it is not permitted to expand or analogically interpret the same as the law. In particular, it accords with the principle of no taxation without the law that can be seen as clearly preferential provisions among the requirements for reduction and exemption (see, e.g., Supreme Court Decision 201Du2016, Dec. 13, 201). As such, the meaning of “direct cultivation” as the requirement for reduction and exemption of capital gains tax is to be determined strictly depending on whether a resident is engaged in cultivating crops in his own farmland or growing 1/2 or more of farming work with his own labor at the time of 00, supra (see, e.g., Supreme Court Decision 200Da1620, Apr. 6, 201).

3) We examine the instant case in accordance with the aforementioned legal doctrine.

A) According to Gap evidence Nos. 4, 5, 7, 8, 10, 11, 12, and evidence Nos. 14-4, 15, and evidence Nos. 4, 14-15, the Plaintiff’s parent of the Plaintiff’s deceased BB and CCC resided in 00, 000, around the instant land. From 1968, the Plaintiff received rice direct payments from 2005 to 2011, the Plaintiff purchased approximately 10 fertilizers, etc. in its own name from 2005 to 2011, and the Plaintiff was provided tax-free petroleum for 207 to 00, 2000, 100, 100, 100, 100, 200, and 10.10,000, 200, 200, and 10,00,00,000 won for purchase of land.

B) However, in light of the following circumstances, Gap evidence Nos. 3, 9, 14, 17, 18, 20, 23, 24, Eul evidence Nos. 1, Eul evidence Nos. 4 through 11, and Eul evidence Nos. 4 through 11, and Eul evidence Nos. 4 through 11, and the whole purport of the pleadings as a whole, it is possible to find it difficult to believe that the plaintiff's testimony of Gap Nos. 13 and 16, and witness EE of the first instance trial and the first instance trial witness No. 1 and the first instance trial witness Nos. 21, 22, and 37 cannot be viewed as having any other evidence to acknowledge that the plaintiff had been engaged in the farming of the agricultural products of this case on the land of this case for a period of not less than eight years prior to the transfer of the land of this case, and there is no other evidence to acknowledge that the plaintiff had cultivated the land of this case with 2/1 or more direct labor."

① On or after March 18, 2002, the Plaintiff acquired the ownership of the instant land, and registered the business under the trade name of '○○○○○○○○○○○○○○○○○○○○○○○’ in its name on or after June 30, 2003, and closed the business on or after March 9, 2003, the Plaintiff registered the business under its own name as '○○○○○○○○○○○○○○○○○’ in its name, and closed the business on or after June 30, 2004 (the Plaintiff asserted that FF, who is the birth, was operating the business by lending the Plaintiff’s name. However, the Plaintiff asserted that the FF, when the request for the examination against the Commissioner of the National Tax Service, was made difficult to live in agriculture, and that FFF, who was working in a foreign language at the time, did not seem to have any special need to operate the business under the Plaintiff’s name.

② In addition, the Plaintiff was a non-regular or regular employee from 2002 to 2012, and the details of earned income acquired by the Plaintiff during the above period are as shown in the attached Table.

③ In particular, the working hours of the ○○○ Union, the Plaintiff was employed as a regular worker from March 1, 2009 to February 28, 2013, are 09:00 to 18:00 each day. The said agricultural cooperative is located at ○○○○ 00-0 in Kimhae-si, Kimhae-si, while the distance from the land of this case remains about 27 km, and when a car is used, it must pass through an expressway, and if it does not use an expressway, the distance remains longer than that of the expressway, and the time goes more.

④ From June 15, 1978, the Plaintiff’s parent BB and CCC’s domicile, ○○○○ 000 around the instant land. On November 13, 2003, the Plaintiff moved to 00,000 00 00 000 000 000 00 000 00 00 00 00 00 00 00 00 00 00, which is the present domicile on November 13, 2003. After then, the Plaintiff moved to 000 0 0 0 00 on the above 0 ○ 000 on June 12, 2004, it did not seem to have been moving to 00 00 0 on the above apartment land, and the Plaintiff did not move to 00 00 00 0 00 m200 m200 m25, 2005.

⑤ From May 29, 2013, DD acquired 000 land among the instant land used to form a rice shed at ○○○○○○○○-ri, the Defendant on May 29, 2013. Since 2006, DDD prepared and submitted a written statement stating that “DDD obtained 400 won per ordinary time when the Plaintiff or the Plaintiff’s mother was directly tried to discuss the instant land, and that DD was involved in the cultivation of the instant land.” From that time, DD was involved in the cultivation of the instant land.

④ The receipt of subsidies for rice income from the instant land was made by LGG, 202, 2003, DD’s subsidiaries, and DoBB, 2004. Meanwhile, the details of sales prior to 2005, ○○ Agricultural Cooperative, indicated that the LBB purchased agricultural chemicals from 2000 to 2004, and the details of purchase were also stated as the LBB to shipping rice from 2003 to 2005, and the details of purchase were stated as the purchaser, and the Plaintiff stated as the purchaser only once in 2007.

7) The legislative intent of the former Restriction of Special Taxation Act, which provides for capital gains tax reduction or exemption for self-arable farmland, is to prevent speculation on non-owned farmland and to prevent the reduction of rural population and revitalize agriculture and rural communities by reducing the tax burden so that a person engaged in agriculture directly can engage in the long-term agriculture. In order to recognize "direct farming", it is reasonable to interpret that the farmland owner shall be excluded from the subject of capital gains tax reduction or exemption if he/she cultivates farmland on a intermittent basis by mainly cultivating farmland using other people's labor in the state of occupation other than agriculture.

2. Conclusion

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