양도소득세 감면규정 적용시 양도일 이전의 감면규정을 적용할 수 있는지 여부[국승]
Whether the reduction or exemption provisions before the transfer date can be applied in applying the capital gains tax reduction or exemption provisions
The provisions of the Restriction of Special Taxation Act concerning farmland transferred after the enforcement of the Special Decree on the Restriction of Special Taxation are not only invalidated by the amendment of the Special Provisions on the Restriction of Special Taxation, but also to the effect that the previous provisions are specifically exempted from taxes within a certain period of time. Thus, the previous provisions are not applicable.
Article 54 of the Regulation of Tax Reduction and Exemption Act (Exemption of Capital Gains Tax, etc. for Self-Cultivating Farmland)
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 capital gains tax of KRW 4,557,660 for the Plaintiff on November 13, 2006 shall be revoked.
1. Details of the disposition;
The following facts are not disputed between the parties, or may be admitted by the entry in Gap evidence 1, 2, and 3-1, 2, and 1 through 3.
가. 원고는 1987. 9. 25. ☆☆시 ◎◎구 ◇◇◇동 349-2 답 450㎡ 중 2578.5/5157 지분(이하 '이 사건 토지'라고 한다.)을 취득하였다가 2006. 5. 19. ♤♤♤♤♤공사에게 양도하였다.
B. On July 20, 2006, the Plaintiff reported capital gains tax reduction and exemption to the Defendant pursuant to Article 69 of the Restriction of Special Taxation Act on the ground that the instant land constitutes farmland with a self-fluence for at least eight years.
"C. The defendant deemed that the plaintiff did not meet the requirements for reduction and exemption of capital gains tax on self-employed farmland under Article 169 of the Restriction of Special Taxation Act. On November 13, 2006, the defendant notified the plaintiff of KRW 4,557,660 for capital gains tax belonging to the year 2006 (hereinafter "the disposition of this case")" and "D. The plaintiff filed a request for correction to the effect that the disposition of this case on February 9, 2007 constituted an infringement of property rights under retroactive legislation, and thus, it was unfair. However, on April 5, 2007, the defendant dismissed the above request for correction on the ground that the plaintiff did not meet the requirements for re-laws (hereinafter "the disposition of rejection of this case"). The plaintiff filed a request for adjudication with the National Tax Tribunal on May 15, 2007, but was dismissed on July 24, 2007."
2. Determination on this safety defense
As to the plaintiff's claim for revocation of the disposition of this case against the defendant by the lawsuit of this case, the defendant did not go through legitimate administrative appeal against the disposition of this case, and therefore, the lawsuit of this case is unlawful.
However, in principle, a disposition that is the subject of an administrative appeal and a disposition that is the subject of an administrative litigation shall be the same as a matter of principle, and if the disposition is different, even if the grounds for appeal are common, it shall undergo an administrative appeal ruling, and even if there are different grounds for appeal, it shall not be deemed that the requirements for the transfer of another disposition are satisfied. However, since the grounds for appeal and administrative litigation are sufficient to maintain the consistency in that basic point of view, one of the dispositions related to each other or dispositions carried out by stages for the same purpose is not required to undergo an administrative appeal (see Article 18(3)2 of the Administrative Litigation Act, Supreme Court Decision 85Nu393, Jul. 7, 1987).
With respect to this case, the facts that the plaintiff filed an appeal against the rejection disposition of this case, which is the disposition taken step by step for the same purpose as the disposition of this case, with the National Tax Tribunal, are as seen earlier. The fact that the plaintiff filed the lawsuit of this case within 90 days thereafter is apparent in fact, so the defendant's defense of this case is without merit.
3. Determination of legality of a disposition
A. The plaintiff's assertion
Article 10(3) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 5584, Dec. 28, 1998; hereinafter the same shall apply) and Article 55(1)1 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 14869, Dec. 30, 1995); Article 54(2)3 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 14869, Dec. 30, 1995); and Article 10(3) of the former Enforcement Decree of the Restriction of Tax Reduction and Exemption Act (amended by Presidential Decree No. 14869, Dec. 30, 1995); and Article 55(1)1 of the former Enforcement Decree of the Restriction of Tax Reduction and Exemption Act (amended by Presidential Decree No. 14869, Dec. 28, 199) provide that capital gains tax exemption is already unlawful.
(b) Related statutes;
It is as shown in the attached Table related statutes.
C. Determination
(1) Applicable Acts and subordinate statutes to the instant disposition
Article 5(1)1 of the former Enforcement Decree of the Restriction of Special Taxation Act provides that capital gains tax shall be exempted for the land prescribed by the Presidential Decree among the land which is subject to taxation of farmland for more than eight consecutive years. Article 54(2)3 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 14869, Dec. 30, 1995) provides that the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 14869, Jun. 19, 200) shall not apply to the case where the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 1960, Jun. 1, 2005) provides that the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 1960, Jun. 1, 2006) shall not apply to the case where the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 1960, Dec. 1, 999).
(2) Whether capital gains tax has been reduced or exempted
(A) Under Article 69(1) of the Restriction of Special Taxation Act and Article 66(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 20620, Feb. 22, 2008), the Plaintiff should have resided in the Si/Gun/Gu where farmland is located or in the Si/Gun/Gu adjacent thereto for at least eight years and cultivated the instant land.
"(나) 을 제4호증의 기재에 변론 전체의 취지를 보태어 보면, 원고가 ☆☆시 ○○구 ◎◎◎동 289 ◇◇아파트 제208동 제404호에 거주하다가 1988. 6. 16.부터 1991. 1. 16.까지 ☆☆시 ○○구 □□동 639 ◇◇아파트 제20동 제503호에서, 1991. 1. 17.부터 1993. 3. 4.까지 ☆☆시 ○○구 □□동 689 ◇◇아파트 제20동 제203호에서, 1993. 3. 5.부터 1996. 6. 2.까지 ☆☆시 △△구 ◈◈동 548 ◇◇아파트 제209동 제2402호에서, 1996. 6. 3.부터 1997. 5. 29.까지 ☆☆시 ♧♧구 ▽▽동 569 ◇◇아파트 제803동 제1210호에서, 1997. 5. 30.부터 1997. 11. 30.까지 ⊙⊙시 ♠구 ●●동 100-4 △△아파트 제3동 제205호에서, 1997. 12. 1.부터 1999. 1. 27.까지 XX시 ■■구 ▷▷동 91 ＄＄아파트 제322동 1101호에서, 1999. 1. 28.부터 2003. 12 8.까지 ☆☆시 ○○구 ◎◎◎동 462 ◇◇아파트 제55동 제404호에서 각 거주하였고, 2003. 12. 9. XX시 □□구 ※※동 419에 전입한 이후 계속하여 그 곳에서 거주하여 온 사실을 인정할 수 있는바, 위 인정사실에 비추어 보면 원고는 8년 이상 농지가 소재한 시 · 군 · 구나 그에 연접한 시 · 군 · 구에 거주한농지 소재지의 거주자'에 해당하지 아니한다.",(다) 따라서 이 사건 토지의 양도에 대한 양도소득세는 감면의 대상이 되지 아니하므로 피고의 이 사건 처분은 적법하다.
4. Conclusion
Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.