The reduction or exemption of capital gains tax shall not apply where a person does not directly cultivate farmland in substitute land.

Although many persons acquired substitute farmland from co-ownership to sell it in installments for other purpose than farmland and sell it only to some land, farmland not directly cultivated in view of the purpose of acquisition of farmland or the current status of cultivation, etc. shall be excluded from the reduction of substitute land.

Article 70 of the Restriction of Special Taxation Act for Substitute Land for Farmland

2016Guhap227 Revocation of Disposition of Imposing capital gains tax

CHAPTER A

00. Head of tax office

July 7, 2016

August 25, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of capital gains tax of 00 won against the Plaintiff on October 0, 2015 is revoked.

1. Details of the disposition;

가. 원고는 1900. 0. 0. 〇〇시 〇〇구 〇〇동 000 답 0㎡(이후 그 중 0㎡가 같은 동 0-0번지로 분할되었다. 이하 위 분할전 토지를 '이 사건 종전토지'라고 한다)를 취득하였고, 위 토지를 2012. 5. 9. 〇〇시에 수용을 원인으로 양도하였다.

나. 원고 외 0인(이하 '원고 등'이라고 한다)은 2000. 0. 0. 〇〇시 〇〇읍 〇〇리

00-00 m20 m20 m2 (hereinafter referred to as “the substitute land of this case”) was jointly acquired (0/0 of the Plaintiff’s shares and 0/0 of the remaining five shares, respectively).

C. On October 0, 200, the Plaintiff: (a) cultivated crops on the part of 0 square meters of the total area of the previous land in this case for more than three years; (b) acquired the substitute land in this case and re-Cultivating crops within one year from the date of transfer; and (c) filed a return on capital gains tax by applying the provisions on reduction and exemption of capital gains tax as to 0 square meters of the previous land.

D. On October 0, 200, the Defendant denied the application for reduction of capital gains tax on the ground that the Plaintiff did not directly cultivate the instant substitute farmland, and issued a correction and notification of KRW 0 of capital gains tax for the year 2000 to the Plaintiff (hereinafter “instant disposition”).

E. The plaintiff is dissatisfied with the above disposition and filed an appeal with the Tax Tribunal on October 0, 200, but the Tax Tribunal dismissed the plaintiff's appeal on October 0, 200.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 4 (including additional evidence), Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff was a professional farmer for a long time in the previous land of this case, and the plaintiff was also a farming farmer.

지번(〇〇시 〇〇읍 〇〇리) 면적(㎡) 원고지분 최종 매도일 매수인최초 취득 2000.0.0.자 분할 2000.0.0.자 분할지가 수용되면서 형제들과 함께 이 사건 대토토지를 공동으로 취득하여 위 토지 북쪽부분(아래에서 보는, 분할 후 〇〇시 〇〇읍 〇〇리 00-0 답 0㎡ 부분을 뜻하는 것으로 보인다. 이 부분을 이하 '이 사건 북쪽토지'라고 한다)에서 깻잎 등을 경작해왔다.

Therefore, not only the Plaintiff cultivated directly from the previous land of this case for more than three years, but also the previous land.

As long as the substitute land in this case was acquired after expropriation and the cultivation was commenced at a place, the transfer of 0 square meters of the previous land in this case is subject to reduction and exemption of capital gains tax, so the disposition of this case denying the Plaintiff’s application for reduction and exemption of capital gains tax must be revoked illegally.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) The plaintiff et al. (hereinafter "the plaintiff et al.") of this case over twice on October 0, 200 and October 0, 2000

The plaintiff finally divided his/her share in each land into three parcels as stated in the "land number" column, and the plaintiff sold it to a person who recorded the "Buyer" column on the date of the last sale of the plaintiff's share in each land.

2) 원고 등은 이 사건 대토토지를 취득한 2000. 0 .0. 〇〇협동조합(이하 '〇〇'이라고 한다)에게 위 토지 전부에 관하여, 건물 및 기타 공작물이나 수목의 소유를 목적으로 한 지상권을 설정해주었다.

3) From October 0, 200, the Plaintiff registered his farmland in the farmland ledger, and the Defendant thereafter registered his farmland in the farmland ledger.

On October 0, 200, which was after October 200, on the field investigation of the land of this case, 00-00 out of the above land (including the land of this case) was registered in the farmland ledger.

4) 원고는 2000. 0 .0.부터 2000. 0 .0.까지 〇〇 〇〇 〇〇로 〇〇 〇〇아파트에서 거주(같은 아파트 내 다른 호실로 이사한 적은 있다)하였다.

[Reasons for Recognition] Facts without dispute, Gap evidence 2-3, Gap evidence 3-1, 2, Gap evidence 4, 7, Eul evidence 1 and 4, the purport of the whole pleadings

D. Determination

1) Article 70 of the former Restriction of Special Taxation Act (Amended by Act No. 13560, Dec. 15, 2015)

According to Paragraph (1) of this Article and Article 67 (3) 1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 25211, Feb. 21, 2014), where a resident who resides in a location of farmland transfers land directly cultivated due to necessity for cultivation, and where a resident acquires another farmland and cultivates it while residing in a new location of farmland for at least three consecutive years within one year (two years in cases of expropriation under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects) from the date of such transfer (two years in cases of purchase by consultation, expropriation under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects) and one year from the date of such transfer, capital gains tax on the transfer of the previous farmland shall be reduced or exempted. This is the case where a person who acquired and sold farmland after having been sold is for the purpose of growing farmland due to necessity for cultivation owned by him/her (see, e.g., Supreme Court Decision 95Nu3695, Sept. 29, 1995).

At this time, the burden of proving the fact that substitute farmland was directly cultivated as a requirement for reduction of capital gains tax;

The principle of strict interpretation derived from the principle of no taxation without the law applies not only to the cases that meet the taxation requirements, but also to the cases that meet the requirements for non-taxation and tax reduction or exemption. As such, either extensively or analogically interpreting or analogically interpreting the requirements for non-taxation or tax reduction or exemption as favorable to taxpayers without any reasonable reason constitutes a result contrary to the principle of fair taxation, which is the basic ideology of the tax law, and thus, it should not be allowed (see, e.g., Supreme Court Decision 2005Da19163, May 25, 2006).

2) He returned to the instant case, and the Plaintiff from October 2000 to North Korea in the instant case.

들깨씨를 파종한 것을 시작으로 현재까지 스스로 경작하고 있다고 주장하나, 갑 제5호증의 기재, 갑 제6호증의 영상은, 원고가 2000년 0월경 한 차례 들깨를 구입한 사실이 있다는 확인서이거나, 2000년 0월 이후에 찍은 사진에 불과하여, 위 증거들만으로 원고가 이 사건 종전토지 처분일(2000. 0. 0.)로부터 2년 이내에 위 북쪽토지에서 경작을 시작한 사실을 인정하기는 부족하고, 달리 원고의 주장사실을 인정할 증거가 없을뿐만 아니라, 오히려 위 인정 사실에 비추어 알 수 있는 다음 사정들 즉, ① 원고 등이 이 사건 대토토지를 취득한 당일 〇〇축협에 지상권을 설정해주어 토지사용의 제약을받은 점, ② 원고 등은 이 사건 대토토지를 취득하여 약 2년 동안 그 면적 중 반 이상을 분할하여 다른 사람에게 매도한 점, ③ 원고가 여전히 보유하며 경작하고 있다 고주장하는 위 북쪽토지 역시 원고의 단독 소유가 아닌 점, ④ 원고는 이 사건 대토토지를 취득한 때로부터 약 2년이 지나서야 농지원부에 위 토지 중 일부를 농지원부에 등재하였고, 위 한 차례의 들깨 구매사실 외에 달리 농작물의 경작을 위해 씨앗이나 묘목, 비료 등의 구입, 농기계 등의 대여와 관련된 자료를 제출하지 못하고 있는 점 등에비추어보면, 원고가 이 사건 대토토지 취득 이후 이 사건 북쪽토지 지상에서 계속적으로 들깨 등을 경작하였다는 주장이 쉽게 믿어지지 않는다.

3) Therefore, it is deemed that the Plaintiff directly cultivated the farmland of this case after acquiring it.

Therefore, the disposition of this case that denies the plaintiff's application for reduction of capital gains tax and imposes capital gains tax is legitimate, and the plaintiff's assertion against this is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Relevant statutes

▣ 구 조세특례제한법(2015. 12. 15. 법률 제13560호로 개정되기 전의 것)

Article 70 (Abatement or Exemption of Transfer Income Tax for Substitute Land for Farmland)

(1) A resident prescribed by Presidential Decree who resides at the seat of farmland has cultivated directly by methods prescribed by Presidential Decree.

Any land created by substitute land for farmland falling under such cases as prescribed by the Presidential Decree, due to the necessity for cultivation.

For income, the tax amount equivalent to 100/100 of the capital gains tax shall be reduced or exempted: Provided, That the relevant land shall be exempted.

Residential areas, commercial areas, and industrial areas (hereafter referred to as "residential areas" in this Article) under the National Land Planning and Utilization Act;

Farmland, other than farmland, incorporated into areas, etc. or prior to a disposition of replotting under the Urban Development Act or other Acts;

Where a land has been designated as a land to be reserved, etc., it shall be included in a residential area, etc.

Only income prescribed by Presidential Decree that accrues in the area shall be exempted from capital gains tax.

▣ 구 조세특례제한법 시행령(2014. 2. 21. 대통령령 제25211호로 개정되기 전의 것)

Article 67 (Requirements, etc. for Reduction or Exemption of Transfer Income Tax for Substitute Land for Farmland)

(2) "Direct cultivation by the method prescribed by Presidential Decree" in the main sentence of Article 70 (1) of the Act means farmland owned by a resident.

at least 1/2 of the farming works for cultivating crops or growing perennial plants;

The term “acculture or cultivation by power” means the cultivation or cultivation by power.

(3) In cases prescribed by Presidential Decree pursuant to Article 70 (1) of the Act, the substitute farmland is farmland cultivated for a necessity for cultivation of eggs.

Cases falling under any of the following subparagraphs:

1. One year from the date of transfer of previous farmland by a person who has cultivated while residing in a location of previous farmland for not less than three years; and

the Act on Acquisition of and Compensation for Land, etc. for the purpose of this section; consultation and expropriation under the Act; and expropriation under other Acts;

(2) If the person resides in a new location for at least three consecutive years after acquiring another farmland within 2 years.

In any of the following cases, which has been cultivated:

(a) The area of new farmland to be acquired shall be at least one half of the area of farmland to be transferred;