농지대토 비과세 여부[국승]
Whether farmland substitute land is exempted;
The transfer of farmland in a residential area under the Urban Planning Act, for which one year has elapsed from the date of incorporation into such area, shall be excluded from the object of non-taxation.
The contents of the decision shall be the same as attached.
The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.
성립에 다툼없는 갑 제 3호증의 1,2, 을 제1호증의 1내지5, 7내지 13의 각 기재에 변론의 전취지를 모아 보면, 원고가 1990. 4. 16. 소외 한국토지개발공사에, 이미 1981. 7. 1. 도시계획법상 주거지역으로 편입되어 있던 대구 ㅇ구 ㅇㅇ동 ㅇㅇㅇㅇ의 ㅇ. 답 582m², 같은동 ㅇㅇㅇㅇ의 . 답 456m², 같은동 ㅇㅇㅇㅇ의 . 답 684m², 같은동 ㅇㅇㅇㅇ의 ㅇ. 답149m²및 같은동 ㅇㅇㅇㅇ의 ㅇ. 도로 66m²합계 1937m²(이하 제1부동산이라 한다.)를 양도하고, 그 다음날 소유권이전등기를 경료해 준 사실, 그러나 원고는 제1부동산을 양도하기 이전인 1989. 1. 10.과 같은해 12. 6.에 같은동 ㅇㅇㅇ. 전 1,481m²및 같은동 49. 답 1,131m²(이하 제2부동산이라 한다.)를 각 취득하여 그 명의로 등기를 경료한 사실, 원고는 제1부동산을 양도한 후 1990. 5. 31. 자산양도차익 예정선고를 하면서 양도소득세는 한국토지개발공사에 양도한 까닭에 조세감면규제법에 따라 감면신청을 하고, 양도소득세분의 방위세는 금15,037,780원으로 예정신고 후 그 날 이를 납부하였는데, 피고는 1991. 2. 17. 예정신고에 계산착오가 있고, 소득공제가 잘못되었다고 하여 원고에 대하여 방위세를 금16,784,100원으로 산출하여 결정한 후, 기납부세액을 공제한 나머지 방위세 금1,746,320원을 납부하라는 고지를 한 사실을 인정할 수 있고, 달리 반증이 없다.
Accordingly, the Plaintiff asserted that the instant taxation is unlawful, although the income from the transfer of the first real estate is subject to non-taxation as substitute land according to the above needs for cultivation, although the income from the transfer of the first real estate is subject to non-taxation, the instant taxation that is subject to this taxation is illegal, and the Defendant asserts that even if the substitute land of the land is located within a residential area under the Urban Planning Act, the transfer of farmland for which one year has elapsed from the date of incorporation into the land within the residential area is excluded from non-taxation, and thus, the instant taxation is lawful.
First of all, Article 5 subparagraph 6 (j) of the Income Tax Act provides that income from substitute land of farmland falling under the cases as prescribed by the Presidential Decree shall be exempted from capital gains tax, and Article 3 (3) of the Defense Tax Act provides that income tax on income under Article 5 subparagraph 6 (j) of the Income Tax Act shall not be imposed, and Article 14 (7) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12564, Dec. 31, 1988; hereinafter the same shall apply) provides that the term "cases as prescribed by the Presidential Decree under subparagraph 6 (j) of Article 5 of the Income Tax Act (excluding farmland falling under any of subparagraphs of Article 14 (3) of the Enforcement Decree; hereinafter the same shall apply)" means cases where the following requirements are met with respect to farmland substituted by cultivation (excluding farmland falling under subparagraphs 1 and 2 of Article 14 (3) of the Enforcement Decree). According to Article 14 (3) 1 of the Enforcement Decree of the Income Tax Act as of the same Act, it shall be incorporated into farmland within one year.
In comparison with the relevant legal provisions of this case, the plaintiff acquired the second real estate and transferred the first real estate within one year, while the area of the second real estate is above the area of the first real estate, on the other hand, the first real estate was incorporated into a residential area under the Urban Planning Act before much more than one year from the date of its transfer. Although it is a substitute land for farmland, it shall be excluded from the object of tax exemption as farmland falling under Article 14 (3) 1 of the Enforcement Decree of the Income Tax Act.
Here, Article 3(1) of the Addenda to the Enforcement Decree of the Income Tax Act provides that Article 14(3)1, (4), and (7) of the Enforcement Decree of the Income Tax Act shall apply from the first transfer after January 1, 1990. In addition, the provisions of the Addenda and the provision on the substitute land of farmland are examined in substitution for farmland incorporated into a residential area, it shall be interpreted that the acquisition date of farmland acquired before and after January 1, 1990 should be 9 for the purpose of imposing tax on capital gains, and that it shall not be subject to retroactive taxation. Since the acquisition of real estate by the plaintiff shall not be subject to retroactive taxation, it shall not be subject to the same taxation for 19 years prior to and after the transfer of land, but shall not be subject to the same taxation for 19 years prior to and after the transfer of land, it shall not be subject to the same taxation for 19 years prior to and after the transfer of land, and therefore it shall not be subject to the same taxation for 19 years prior to the transfer of land.
Therefore, the plaintiff's claim is without merit, and the costs of lawsuit are assessed against the losing plaintiff. It is so decided as per Disposition.
June 24, 1992