2. The costs of the lawsuit are assessed against the defendant.

A. On June 11, 1980, the Plaintiffs acquired and held 1,622 square meters prior to ○○○○-dong ○○○○○○○-dong and 208 square meters prior to △△-dong ○○○-dong ○○○-dong ○○, and each of the instant lands (hereinafter “each of the instant lands”). On June 24, 2005, the Plaintiffs were admitted by ○○-si on June 24, 2005.

B. Although each of the instant lands was cultivated as farmland until May 2003, the Plaintiffs created each of the instant lands as a parking lot on or around May 2003, and leased each of the instant lands to neighboring used cars buyers as a parking lot. At the time of the said land expropriation, each of the instant lands was used exclusively for a parking lot. The Plaintiffs completed their business registration around June 15, 2003, when each of the instant lands was leased as a parking lot.

C. In making a preliminary return of capital gains tax on August 31, 2005, the Plaintiffs reported that each of the instant lands constitutes self-arable farmland under Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 7839, Dec. 31, 2005; hereinafter the same shall apply) and Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329, Feb. 9, 2006; hereinafter the same shall apply) and that the total amount of tax is reduced or exempted. However, the Defendant rendered each of the instant dispositions on March 2, 2006 on the ground that each of the instant lands is not farmland as of the date of land transfer, and thus is not subject to reduction or exemption.

Evidence Nos. 3, 9-1, 2, 11-1 through 4, Eul evidence Nos. 1-1 through 4, Eul evidence No. 2, Eul evidence No. 3-1, 2, Eul evidence Nos. 7 and 8, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

Since the acquisition of each of the lands of this case, the Plaintiffs got out of around 8 years from May 2003. However, around September 13, 2001, there were problems such as traffic congestion, etc. due to the creation of ○ used vehicle trading complex on each of the lands adjacent to each of the lands of this case and the implementation of business activities at a certain point. In addition, as access roads were established in the process of creating a trading complex, each of the lands of this case located around the access road was located at a lower place than 2.2 meters or more compared to adjacent lands such as access roads, thereby getting out of the function of each of the lands of this case, such as living wastewater, etc., and the possibility of a disaster caused by a storming, the Plaintiffs lost the function of each of the lands of this case as farmland. In addition, as the possibility of excluding the possibility of a disaster caused by a storm, the ○○○ Office made a request for cooperation by raising the lands of this case to use it as a parking lot.

Article 66 (5) of the Enforcement Decree of the Restriction of Special Taxation Act provides that the farmland as of the date of transfer shall be the basis for the land subject to reduction or exemption of capital gains tax as of the date of transfer. However, in cases where a purchaser changes the form and quality of the land as of the date of the sale contract in accordance with the terms and conditions of the transaction before the transfer date, and starts construction works, etc., if the relevant farmland is designated as land other than farmland before the date of the land substitution disposition, and it becomes impossible to cultivate as of the date of commencement of construction works of land creation after the designation of the land scheduled for substitution, which is not farmland within three years from the date of the land scheduled for substitution, the said proviso shall be based on the farmland as of the date of commencement of land creation works.

Therefore, in determining whether each of the instant lands constitutes self-arable farmland under Article 69(1) of the former Restriction of Special Taxation Act and Article 66 of the Enforcement Decree of the same Act, each of the instant dispositions, which reported differently, is unlawful even though it should be determined at the time of May 2003, which became impossible to do so.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

조세법률주의의 원칙상 과세요건이나 비과세요건 또는 조세감면요건을 막론하고 조세법규의 해석은 특별한 사정이 없는 한 법문대로 하여야 하고 합리적 이유 없이 확장해석하거나 유추해석하는 것은 허용되지 않는다 할 것인바(대법원 2002. 7. 26 선고 2001두5521 판결 등 참조), 이 사건 각 토지가 구 조세특례제한법 시행령 제66조 제5항 단서에 해당되지 아니함은 법문상 명백하고, 갑 제4 내지 8호증의 각 기재, 증인 현○○의 증언만으로 이 사건 각 토지를 성토하여 주차장으로 전용 ▪ 임대하는 것이 불가피하였다거나 이 사건 각 토지에 대하여 위 단서조항을 확장해석하거나 유추해석하여 적용할 만한 합리적 이유가 있다고 인정하기에는 부족하고 달리 이를 인정할 증거도 없으므로 원고들의 위 주장은 이유 없고, 사정이 그러한 이상 이 사건 각 토지가 양도소득세 감면 대상에 해당되지 아니함을 전제로 한 이 사건 각 처분은 적법하다.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.

Related Acts and subordinate statutes

[former Restriction of Special Taxation Act (amended by Act No. 7839 of Dec. 31, 2005)

Article 69 Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland

(1) With respect to the income accruing from a transfer of land as prescribed by the Presidential Decree, which is directly cultivated by the resident as prescribed by the Presidential Decree, for not less than eight years [not later than December 31, 2005, in case where the farmland in the agricultural promotion area under Article 32 of the Farmland Act is transferred to the Korea Agricultural and Rural Infrastructure Corporation under the Korea Agricultural and Rural Infrastructure Corporation and Farmland Management Fund Act (hereafter in this Article, referred to as the “Korea Agricultural and Rural Infrastructure Corporation”) or to the corporation as prescribed by the Presidential Decree, whose main business is the agriculture (hereafter in this Article, referred to as the “agricultural corporation”), not later than 5 years, and not later than 3 years, in case where the farmland subject to the direct payment subsidy as prescribed by the Presidential Decree, is transferred to the Korea Agricultural and Rural Infrastructure Corporation or the agricultural corporation, not later than 3 years, not later than 200] and which is subject to the taxation of agricultural income tax (

[Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329 of Feb. 9, 2006)]

Article 66 Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland

(4) For the purpose of the text of Article 69 (1) of the Act, the term “land as prescribed by the Presidential Decree” means the farmland which has been cultivated by himself for not less than 8 years (5 years in the case of transfer to the Korea Agricultural and Rural Infrastructure Corporation or the corporation under paragraph (2); 3 years in the case of transfer to the Korea Agricultural and Rural Infrastructure Corporation or the corporation under paragraph (2)) from the time of acquisition until the time of transfer, excluding the farmland falling under any of the following subparagraphs:

(5) The farmland subject to paragraph (4) shall be based on the farmland as of the date of transfer under Article 162 of the Enforcement Decree of the Income Tax Act: Provided, That where a purchaser changes the form and quality of farmland and starts construction in accordance with the terms and conditions of a sales contract before the transfer date, it shall be based on the farmland as of the date of the sales contract where the purchaser starts construction works, etc., and where the relevant farmland has been designated as a land as a planned land substitution before the disposition of replotting was made, and it has become impossible