early 208 Heavy0329 (Law No. 8630, 2008)

Whether a person has been engaged in direct farming for at least two years retroactively from the date of donation;

It is reasonable to deem that he had resided in the Si/Gun/Gu where farmland is located or the Si/Gun/Gu adjacent thereto, and has been engaged directly in farming for not less than 2 years retroactively from the donation date of the farmland

The contents of the decision shall be the same as attached.

1. The Defendant’s disposition rejecting to rectify the gift tax made against the Plaintiff on October 10, 2007 is revoked.

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

It is the same as the disposition.

1. Circumstances of the disposition;

가. 원고는 2006. 5. 29. 화성시 장안면 ♤♤리 558-5 전 14,119㎡와 같은 리 558-12 전 4,764㎡(이하 '이 사건 농지'라 한다)를 증여받은 다음, 같은 해 8. 14.경 증여세 87,643,720원을 신고ㆍ납부하였다.

B. After August 31, 2007, the plaintiff filed a claim for correction with the defendant on August 31, 2007 to the effect that the farming child of this case constitutes farmland exempted from gift tax, and thus, the tax amount to be paid was refunded. However, on October 10, 2007, the defendant rejected the claim for correction based on the grounds that the plaintiff did not meet all the requirements of Article 58 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 5584 of Dec. 28, 1998) and Article 15 (2) of the Addenda of the Restriction of Special Taxation Act (amended by Act No. 5584 of Dec. 28, 199).

C. The Plaintiff filed an appeal with the Tax Tribunal on January 10, 2008, but was dismissed on the same ground as on June 30, 2008.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 5, Eul evidence 1, the purport of the whole pleadings

2. Whether the rejection disposition of this case is legitimate

A. The parties' assertion

(1) Plaintiff

According to Article 15(2) of the Addenda of the Act and Article 58(1) of the Act prior to the amendment, the requirements for residence of donee eligible for exemption from gift tax should be determined retroactively for two years based on the actual donation date, not on January 1, 1999. Thus, the plaintiff constitutes grounds for exemption under Article 15(2) of the Addenda of the Act.

(2) In order to apply the exemption provisions under Article 15 of the Addenda to the Defendant’s Act, Article 58 of the Amendment Act, etc., the requirements for farming children under Article 57 of the Enforcement Decree of the Act as of January 1, 1999 shall be satisfied, but the Plaintiff did not meet the above requirements after residing in the Magsan-dong until December 15, 2003.

(b) Related Acts and subordinate statutes: To be stated in attached Form;

C. Determination

Article 15 (2) of the Addenda of the Act provides that "A person who donates farmland, etc. to a farmer until December 31, 2006 shall be donated to the farmer." Thus, it shall not be limited to cases where the farmer satisfies all the requirements, such as Article 58 of the Act before the amendment as of January 1, 199 and has already been donated, but shall also be subject to cases where the farmer donates the farmer to a farmer by December 31, 2006 after the amendment of the Act. Therefore, it is reasonable to view that the requirements, etc. of the donee's residence required under Article 58 of the Act before the amendment and Article 57 of the Enforcement Decree of the Act before the amendment should be determined as of the actual donation date, and it is also necessary to consider that there is a need to protect the farming child who is directly engaged in farming by succeeding the self-employed farmer by the deadline prescribed in Article 15 (2) of the Addenda after January 1, 199.

갑 제3호증의 2, 갑 제4호증의 1, 갑 제9호증의 1 내지 3, 갑 제10호증의 1 내지 3의 각 기재에 의하면, 원고는 2003. 12. 15.까지 광명시 철산동 등에서 거주하다 2003. 12. 16. 화성시 장안면 ♤♤리 558-3으로 전입한 사실 및 그 무렵부터 이 사건 농지의 수증일까지 계속하여 직접 영농에 종사한 사실을 인정할 수 있으므로, 원고는 이 사건 농지가 소재하는 시ㆍ군ㆍ구 또는 그와 연접한 시ㆍ군ㆍ구에 거주하면서, 당해 농지 등의 증여일부터 소급하여 2년 이상 계속하여 직접 영농에 종사한 경우에 해당한다고 할 것이므로, 원고가 법 부칙 제15조, 개정전 법 제58조 등의 수증자 거주요건을 충족하지 못하였다고 할 수는 없다.

3. Conclusion

Therefore, since the rejection disposition of this case is unlawful, the plaintiff's claim seeking the revocation is justified, and it is so decided as per Disposition by admitting it.