The early 2015Gu409

Whether the date of determining whether farmland has not been cultivated by the implementation of the land creation project before the designation of the land scheduled for substitution is the commencement date of the land creation project.

Since the date of determining whether farmland has been cultivated by the implementation of the land development project before the designation of the land scheduled for substitution is the transfer date, the land of this case, which is not farmland at the time of transfer, shall not be subject to reduction or exemption for eight years

Article 69 of the Restriction of Special Taxation Act, Article 66 of the Enforcement Decree of the Restriction of Special Taxation Act

2015Guhap22075 Revocation of Disposition of Imposing capital gains tax

AA

Head of the Tax Office

September 15, 2015

October 20, 2015

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 222,96,960 against the Plaintiff on November 13, 2014 is revoked.

1. Details of the disposition;

A. On December 26, 197, the Plaintiff acquired 190 square meters of O-O 2,885 square meters of O-O O-O 2,885 square meters on the ground of inheritance, on November 3, 200, each of which was transferred to CCC on August 6, 2013 (hereinafter “instant transfer”).

B. On October 31, 2014, the Plaintiff reported a transfer income tax on the transfer of each of the instant lands, and filed an application for reduction of KRW 200 million among KRW 327,371,561 of the calculated tax amount on the ground that each of the instant lands was self-defilled for at least eight years, and paid the remainder KRW 127,371,561.

C. On November 13, 2014, the Defendant, on the ground that each of the instant land was not farmland as of the date of the instant transfer, excluded the reduction or exemption of capital gains tax on self-Cultivating farmland, and corrected and notified the capital gains tax of KRW 222,96,960 (including additional tax of KRW 22,96,960) for the year 2013 (hereinafter “instant disposition”).

D. On November 25, 2014, the Plaintiff filed an appeal on the instant disposition, but the appeal was dismissed on March 18, 2015.

Facts without any dispute, Gap's 1, 2, Eul's 1 and 2, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Application of capital gains tax reduction regulations

Article 66 (5) 2 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26070, Feb. 3, 2015) provides that where the relevant farmland is designated as land, other than farmland, and it becomes impossible to cultivate as a result of the implementation of the project to create the land after the designation of the land as land to be reserved before three years elapse from the date of the designation of the land to be reserved: The farmland standards as of the date of the commencement of the project to create the land shall be deemed to be the farmland as of the date of the commencement of the project to create the land. At present, in most urban development projects implemented by the replotting method, the land development project is commenced prior to the designation of the land to be reserved. However, if the capital gains tax is allowed to be reduced or exempted for eight or more years only if the land development project starts after the designation of the land to be reserved, the reduction or exemption provision should be interpreted to first commence the project to create the land before the designation of the land to be reserved, regardless of the purpose and purpose of the land development project.

2) Parts related to additional tax

The disposition of this case constitutes a case where there is a justifiable reason not to mislead the Plaintiff, who is not a tax specialist, of neglecting the duty to pay taxes, and thus, the part of penalty tax in the disposition of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Determination on the application of capital gains tax reduction and exemption provisions

The interpretation of tax laws and regulations is interpreted as a legal interpretation, barring any special circumstance, and it is not permitted to expand or analogical interpretation without any reasonable reason, and in particular, it is in line with the principle of equity in taxation to strictly interpret the provisions that can be clearly viewed as a preferential provision among the requirements for reduction and exemption (see, e.g., Supreme Court Decisions 2003Du11728, Feb. 13, 2004; 97Nu2090, Mar. 27, 1998; 2001Du731, Apr. 12, 2002; 2001Du731, Apr. 12, 2002). The land which is not actually cultivated as of the date of transfer cannot be deemed as farmland as at the date of transfer, unless it is used as farmland by the landowner’s own person or temporarily in a state of absence or temporary absence (see, e.g., Supreme Court Decision 201Du318316, Apr. 11, 2008).

Meanwhile, Article 69(1) of the Restriction of Special Taxation Act and Article 66(5)2 of the Enforcement Decree of the former Enforcement Decree of the Special Act on the Restriction of Special Taxation provides that, in cases of farmland cultivated by a person who resides in a location of farmland for at least eight years from the time of its acquisition to the time of its transfer and where a land scheduled for replotting, other than farmland, has been designated before a disposition of replotting, farmland for which three years have not elapsed since the date of the designation of the land scheduled for replotting, shall be deemed as farmland subject to reduction or exemption of capital gains tax, and farmland subject to the above reduction or exemption provisions shall be based on the farmland as of the date of transfer: Provided, That in cases where the relevant farmland was designated as a land scheduled for replotting other than farmland before three years have elapsed since the date of the designation of the land scheduled for replotting and it was impossible to cultivate by the implementation of the land created after the designation of the land scheduled for replotting, such farmland as of

Comprehensively taking account of the overall purport of the statements and arguments in the evidence Nos. 3 and 4, each of the instant lands was incorporated into the relevant project site according to the authorization and public notice of the implementation plan for an urban development project of the OO market on March 19, 207. The Plaintiff was unable to cultivate each of the instant lands upon the commencement of the construction project on June 28, 2007, and it was recognized that the Plaintiff was designated as a planned land substitution for each of the instant lands on November 5, 2010, and that the Plaintiff transferred each of the instant lands to the CCC on August 6, 2013.

As above, the suspension of cultivation due to the land development project for the purpose of an urban development project cannot be deemed a temporary suspension condition, barring any special circumstances. As such, each of the instant land cannot be deemed farmland as of the date of August 6, 2013, and as long as the Plaintiff’s failure to cultivate each of the instant land as farmland is obviously attributable to the land development project executed before the designation of the land scheduled for substitution was made, in determining whether farmland was farmland as of the date of transfer, the provision on reduction and exemption of this case recognizing exceptions only to “the case where the land development project was performed after the land other than farmland was designated as the land scheduled for substitution” cannot be applied, and even in the case where the land development project was prior to the designation of the land scheduled for substitution than that of the land scheduled for substitution, it cannot be interpreted that

Ultimately, this part of the Plaintiff’s assertion is without merit.

2) Parts related to additional tax

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of tax claims, where a taxpayer violates various obligations, such as a return and tax payment, as prescribed by the Act without justifiable grounds, the taxpayer’s intentional or gross negligence is not considered, and the site, etc. of statutes do not constitute justifiable grounds that do not constitute a violation of the duty (see, e.g., Supreme Court Decisions 2002Du10643, Feb. 26, 2004; 2000Du3788, Nov. 13, 2001). Thus, it is difficult to view that the Defendant’s disposition by the National Tax Service based on the notice issued by the National Tax Service does not constitute justifiable grounds that do not constitute a violation of the duty to impose taxes on the Plaintiff. Thus, the Plaintiff’s assertion that the penalty tax portion in the instant disposition is unlawful is without merit

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.