Whether Article 14(7)1 of the former Enforcement Decree of the Income Tax Act deviates from the scope of delegation by the parent law or violates the principle of no taxation without law (negative)

In light of the legislative intent of Article 5 subparagraph 6 (j) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994), where the relevant provisions concerning non-taxation of capital gains tax and the substitute land of farmland are exempt from capital gains tax, Article 5 subparagraph 6 (j) of the same Act delegated not only the scope of farmland transferred for substitute land but also the scope of newly acquired farmland to the Presidential Decree. Thus, Article 5 subparagraph 6 (j) of the same Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) provides for the requirements for newly acquired farmland under Article 14 (7) 1 of the Enforcement Decree of the same Act, it cannot be said that it deviates from the delegation scope of the mother law or violates the no taxation without law.

Subparagraph 6 (j) of Article 5 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) (see current Article 89 subparagraph 4) and Article 14 (7) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) (see current Article 152)

Plaintiff (Attorney Kim Ba-young, Counsel for the plaintiff-appellant)

Head of Seogsan Tax Office

Busan High Court Decision 98Nu977 delivered on December 17, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below determined that the land of this case does not constitute farmland subject to exemption from capital gains tax on September 23, 1987, on the ground that there is no evidence to support the fact that the plaintiff acquired the land of this case on September 23, 1987, and there is no evidence to support the fact that the plaintiff acquired the land of this case on September 23, 1987.

In comparison with the records, the above fact-finding by the court below is justified, and there is no error in violation of the rules of evidence as otherwise alleged in the ground of appeal.

The grounds of appeal on this point are rejected.

2. Regarding ground of appeal No. 2

In comparison with records, the court below's decision that the income from the transfer of the land of this case does not fall under the income from substitute land of farmland subject to non-taxation of capital gains tax on the ground that there is no evidence to acknowledge the fact that the plaintiff had done so on the land of this case and the newly acquired land does not fall under the income from substitute land of farmland subject to non-taxation of capital gains tax, is just and there is no error of law such as misunderstanding of facts due to a violation of the rules of evidence or

The grounds of appeal on this point are not accepted.

3. As to the third ground for appeal

Article 5 subparagraph 6 (j) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994; hereinafter "the Act") provides that "income accrued from the substitute land of farmland falling under the cases prescribed by the Presidential Decree" as one of the objects of non-taxation of capital gains tax. Article 14 (7) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) provides that "when one of the requirements for non-taxation of capital gains tax under subparagraph 6 (j) of Article 5 of the former Income Tax Act (amended by the Presidential Decree No. 14467 of Dec. 31, 1994) acquires another farmland within one year from the date of transfer of the previous farmland and cultivates the farmland for not less than three years, in light of the purpose of legislation that is non-taxation of capital gains tax, Article 5 subparagraph 6 (j) of the Act is not only a new violation of the Enforcement Decree of the Act on delegation of the scope of farmland.

The grounds of appeal on this point are without merit.

4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae-sik (Presiding Justice)