조특법상 농지대토에 대한 양도소득세 감면요건 중 3년 이상이라는 요건은 거주기간뿐만 아니라 경작기간에도 필요한 것으로 해석함이 상당함[국승]
It is reasonable to interpret that the requirement of reduction of capital gains tax for substitute land for three years or more under the Restriction of Special Taxation Act is necessary for not only the period of residence but also the period of cultivation.
Since the cultivation period of the instant land is less than three years and the Plaintiff did not directly cultivate the instant land at the time of the transfer of the instant land, the Plaintiff did not meet the requirements for reduction and exemption of capital gains tax on substitute farmland.
2014Gu 100032 Revocation of Disposition of Imposing capital gains tax
AAA
The director of the tax office
May 16, 2014
May 30, 2014
1. The part concerning the claim for revocation of imposition of local income tax among the instant lawsuit shall be dismissed.
2. The plaintiff's remaining claims are dismissed.
3. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s imposition of capital gains tax of KRW 51,272,960 against the Plaintiff on November 5, 2013 and the imposition of KRW 5,127,290 on local income tax of KRW 2013 shall be revoked.
1. Whether the part of the instant lawsuit seeking revocation of imposition of local income tax is legitimate
According to Gap evidence 1-2, the head of a tax office, on November 5, 2013, the defendant, who is the head of a tax office, issued a tax notice of KRW 5,127,290 with respect to the plaintiff on November 5, 2013 on the tax base of the transfer income tax in 2013. However, Article 93 (5) of the former Local Tax Act (amended by Act No. 12153, Jan. 1, 2014) provides that "where the head of a tax office receives a return on income tax or imposes a tax notice and notice pursuant to paragraphs (1) and (2), the head of a local government shall be deemed to have received a return or imposed a tax notice." Thus, the defendant of an appeal seeking the revocation of the
Therefore, the part concerning the claim for revocation of the imposition of local income tax among the instant lawsuit is unlawful as it is against a non-qualified person.
2. Whether imposition of capital gains tax is legitimate.
(a) Details of the disposition;
(1) On July 2, 2008, the Plaintiff: (a) acquired 3,428 square meters in ○○○○○-do 251-10 square meters; (b) on May 14, 2009, 251-11 square meters in 1,071 square meters in 251-12 in 208; and (c) transferred the instant land to KimB on January 28, 2013.
(2) On August 20, 2013, 2013, the Plaintiff acquired 257-3 3,233 m2 (hereinafter “instant substitute land”) from △△△-gun, △△△-gun.
(3) On August 25, 2013, the Plaintiff reported the transfer income tax of the instant land to the Defendant on August 25, 2013, and filed an application for reduction of or exemption from the transfer income tax for farmland substitute land on the ground of acquisition
(4) On November 5, 2013, the Defendant denied the reduction or exemption to the Plaintiff, and the capital gains tax in 2013.
51,272,960 won (including additional tax) was imposed (hereinafter referred to as "instant disposition").
[Ground of recognition] Facts without dispute, Gap evidence 1-1, Gap evidence 2-1-6, Eul evidence 1-2 and the purport of the whole pleadings
B. Whether the instant disposition is lawful
(1) The plaintiff's assertion
The Plaintiff: (a) leased the instant land to another person on or around December 2010 due to the Plaintiff’s failure to become a farmer; (b) transferred the instant land on or around January 28, 2013 to continue farming; (c) acquired the instant substitute land on or around August 20, 2013 to continue farming. The Plaintiff resided in the location of the instant land for at least three years; (d) directly cultivated the instant land; and (e) acquired the instant substitute land as necessary for farming, thereby satisfying the requirements for reduction and exemption of capital gains tax; and (e) it is not a requirement for reduction and exemption of capital gains tax on the farmland substitute land. Accordingly, the instant disposition is unlawful.
(2) Determination
Article 70 of the former Restriction of Special Taxation Act (amended by Act No. 12173, Jan. 1, 2014); Article 67 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 25211, Feb. 21, 2014) provides for the requirements for the reduction or exemption of capital gains tax on farmland substitute land. This is a provision to protect farmers by allowing and guaranteeing free substitution of farmland, thereby promoting the development and encouragement of agriculture. Therefore, the transferor shall be a person who directly cultivates the previous land at the time of transfer (see Supreme Court Decision 95Nu3695, Sept. 29, 195). The same purport is that the transferor shall be a person who directly cultivates the previous land at the time of transfer (see Supreme Court Decision 95Nu3695, Sept. 29, 195).
In this case, the plaintiff's assertion itself is less than 3 years, and the cultivation period of the land of this case is less than 3 years.
Since the Plaintiff did not directly cultivate the instant land at the time of the transfer of the instant land, the Plaintiff failed to meet the requirements for reduction or exemption of capital gains tax on substitute farmland. Therefore, the Plaintiff’s assertion is without merit, and the instant disposition is lawful.
3. Conclusion
Therefore, the part of the claim for revocation of imposition of local income tax among the lawsuit of this case is unlawful.
The plaintiff's remaining claims are dismissed. The plaintiff's remaining claims are dismissed. It is so decided as per Disposition.