Appellate Court 2013J 4362 ( December 16, 2013)

It cannot be viewed as having cultivated directly from the land of this case for not less than 8 years, and thus is not subject to reduction.

The testimony of the witness alone is insufficient to recognize that he/she was engaged in the cultivation of crops or the growing of perennial plants for not less than 8 years in the land of this case, or that he/she cultivated or cultivated not less than 1/2 of the farming work with his/her own labor, so it does not

2014Gudan51848 Revocation of Disposition of Imposing capital gains tax, etc.

IsaA

BB Director of the Tax Office

December 16, 2014

January 23, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's disposition of imposition of KRW 00,000,000 and special rural development tax for the year 2012 against the plaintiff on February 1, 2013 is revoked.

1. Details of the disposition;

A. On November 11, 1989, the Plaintiff acquired the instant land from the Incheon XX Dong 000,000,000, and transferred it to the Incheon Urban City Corporation for KRW 000,000,000 on January 11, 2012, and filed a return on capital gains tax reduction by applying Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 11614, Jan. 1, 2013; hereinafter the same) on March 31, 2012 pursuant to Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 11614, Jan. 1, 2013) that the instant land constitutes self-owned farmland for at least eight years.

B. On February 1, 2013, the director of the Central Regional Tax Office determined that the Plaintiff could not be deemed to have cultivated directly from the instant land for at least eight (8) years. Accordingly, the Defendant issued the instant disposition imposing capital gains tax of KRW 00,000,000 (including penalty tax of KRW 0,000,000) and special rural development tax of KRW 0,00,000 on the Plaintiff.

C. The Plaintiff filed an appeal with the Tax Tribunal on August 13, 2013 on the instant disposition on April 12, 2013, but was dismissed on December 16, 2013.

Facts that there is no dispute over recognition, entry in Gap 1 through 3, and Eul 1, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant land is a small-scale farmland with a size of 926 square meters short of the weekend farm, and the Plaintiff acquired it from November 11, 1989 to June 15, 1998, which had moved out of 20km of the total-distance 20km, or the Plaintiff’s mother cultivated. The Plaintiff was employed as a nurse who works for the said period with three large numbers of households during the said period and had more time in the week compared to the general company members, and was sufficiently able to cultivate the instant land using weekends and holidays as farmland for his own consumption within the small garden size. Moreover, the instant land is not subject to the farmland ledger. Considering that the Plaintiff was not expected to transfer the instant land, but was expropriated, the degree of proof may be somewhat mitigated. Accordingly, according to the evidence submitted by the Plaintiff, the Defendant’s disposition of this case is unlawful on a different premise.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

The legislative purpose of Article 69 of the former Restriction of Special Taxation Act is to reduce the tax burden due to the transfer of farmland as part of the land farming policy, and is to activate agriculture and rural communities by reducing the tax burden of self-employed farmers (see, e.g., Constitutional Court Order 2003HunBa2, Nov. 27, 2003). Under Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act, the term "direct farming" refers to the cultivation of crops or the cultivation of perennial plants at all times, or the cultivation or cultivation with their own labor of not less than 1/2 of the farming work. This fact must be proved by the plaintiff.

The key issue of this case is whether the Plaintiff resided within 20km in a straight line from the land of this case to the transfer after the acquisition of the land of this case and directly cultivated the land of this case for 8 years or more.

Although there is no dispute between the parties that the Plaintiff resided within about seven kilometers from the land of this case from November 11, 1989 to June 16, 1998, it is insufficient to recognize that the Plaintiff had been engaged in cultivating crops or growing perennial plants for at least eight years on the land of this case, or that the Plaintiff had cultivated or cultivated not less than half of farming work with his own labor, and there is no other evidence to acknowledge otherwise. Accordingly, the disposition of this case is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.