Daejeon District Court 2012Gudan626, 2012

Cho Gyeong 201 Jeon 4835 ( December 27, 2011)

The provision excluding non-business land for the farmland owned at the time of this farming is applied only to the previous farming on December 31, 206.

The provision excluding non-business land for the farmland owned at the time of this farming is applicable only to those who were transferred to the farm before December 31, 206, and it does not constitute a violation of the principle of tax equality on the ground that the farmers who selected to continue to operate the farming in the farmland incorporated into the urban area without selecting the farmer, does not regard as being subject to reduction and exemption.

2012Nu1899 Revocation of Disposition rejecting a request for rectification of capital gains tax

XX

The Director of the National Tax Service

Daejeon District Court Decision 2012Gudan626 Decided July 19, 2012

November 15, 2012

January 10, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The first instance judgment is revoked, and the defendant's rejection disposition against the plaintiff on July 22, 201 against the plaintiff shall be revoked.

1. Quotation of judgment of the first instance;

The court's explanation on this case is to change the relevant Acts and subordinate statutes of the court of first instance to the relevant Acts and subordinate statutes of the court, and 2.C. of the court of first instance to the relevant Acts and subordinate statutes of the court of first instance, and to the reasoning of the court of first instance other than re-written as follows. Thus, this is to be cited by Article 8(2) of the Administrative Litigation Act and

2. Part to be used again; and

C. Determination

(1) According to Article 104-3(2) of the Act and Article 168-14(3)5 of the Enforcement Decree of the same Act, according to the instant reduction or exemption provisions, the land transferred by a person who transferred before January 1, 2007, which was the enforcement date of the imposition of capital gains tax on the land for non-business use under Article 104 of the Act, as farmland owned by him/her at the time of transfer by December 31, 2009 pursuant to Article 6(2)5 of the Farmland Act shall not be deemed land for non-business use.

First of all, since the land category of this case is a piece of land before the Plaintiff acquired the land in this case, there is no dispute between the parties, the land in this case shall be deemed land for non-business use in principle as farmland in an urban area under the main sentence of Article 104-3 (1) 1 (b) of the Act: Provided, That where the requirements prescribed by the reduction and exemption regulations under Article 168-14 (2) of the Act and Article 168-14 (3) 5 of the Enforcement Decree of the same Act are met, land for non-business use may not be deemed land

However, the provision on reduction and exemption of this case stipulates that only those who had been born on or before December 31, 2006 shall apply to the person who had been born on or before December 31, 2006. In the event that a person who had been cultivated by a village and a self-employed person transfers the farmland by the time of transfer, the provision on reduction and exemption of

(2) The plaintiff's assertion

The provision on reduction or exemption of this case is based on the premise that it is reasonable to exclude a person who does not move to a farm after December 31, 2006 from the subject of heavy taxation without a need to speak, and if the farmland is judged as non-business land, it is contrary to the principle of tax equality by giving preferential treatment to a person who is exceptionally permitted to own the farmland, rather than in a case where ownership of the farmland is permitted in principle, so it is contrary to the principle of tax equality, so the "person who moved to a farm before December 31, 2006" of the provision on reduction or exemption of this case has an inherent nature of "a person who continues to operate the agricultural business under the condition that he satisfies the requirements of agriculture."

(3) Determination

(A) Under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring any special circumstance, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of equity in taxation to strictly interpret the provisions that can be seen as clearly preferential provisions among the provisions on reduction and exemption requirements (see Supreme Court Decision 2008Du11372, Aug. 20, 2009). In addition, the provision of the taxation requirements and the exceptional provisions on non-taxation or annual tax exemption in the tax laws and regulations are within the legislative discretion of the legislator unless such provision is significantly unreasonable (see Supreme Court Decision 9Du7265, May 29, 2001).

(B) The provisions of Article 104-3 (1) 1 (b) of the Act and Article 168-8 (4) through (6) of the Enforcement Decree of the same Act provide that farmland incorporated into an urban area shall be regarded as land for non-business use when two years have elapsed from the date of incorporation into an urban area, even in cases where farmland incorporated into an urban area is re-established, re-developed, or can own farmland under the Farmland Act or other Acts. This provision applies to farmland in an urban area as land for non-business use regardless of whether it is re-established or self-developed.

(C) The above provision imposing capital gains tax on farmland incorporated into an urban area as non-business land is prepared to continuously increase the land price due to continuous urban development in the case of farmland incorporated into an urban area, such as the land in this case. Therefore, it seems to be in accordance with the legislative intent of intending to perform the function of re-distribution of income by absorbing excess gains, regardless of the owner's effort, from the land for non-business use, which is deemed to have been excessive

(D) Meanwhile, in order to protect the trust of taxpayers who cannot evade the heavy taxation rate due to the implementation of a new system among the existing taxpayers in the process of the introduction of the heavy taxation system on land for non-business use, the criteria for determining land that is not deemed land for non-business use due to unavoidable reasons under Article 104-3(2) of the Act, Article 168-14 of the Enforcement Decree of the same Act, and Article 83-5 of the Enforcement Rule of the same Act shall be determined, and the enforcement date of the said provision was January 1, 2007, even though the said provision was amended as of December 31, 2005. This is interpreted to have given the time limit for deliberation so that the owners of land to be subject to heavy taxation can sufficiently understand whether they dispose of the relevant land in order to change the application of the heavy taxation rate, and even if they are subject to the heavy taxation rate, even if they are subject to the application of the heavy taxation rate.

(E) As seen above, when farmland has been incorporated into an urban area for a certain period after its incorporation, whether it falls under the land for non-business use does not appear to be an element of consideration in determining whether it falls under the land for non-business use, and in determining whether it falls under the land for non-business use outside an urban area, it is difficult to see that the "self-employed person" is naturally inherent in the meaning of the "self-employed person" in the provision for reduction or exemption of this case, and in full view of the timing of the enforcement of the amended Act, the taxpayer takes measures to protect the taxpayer's trust who is subject to heavy tax rate by delaying the time of enforcement of the amended Act, and give the taxpayer an opportunity to choose economic benefits due to the increase of interest or land price, it is difficult to accept the Plaintiff's assertion that it does not clearly go against the principle of equality of tax reduction or exemption by regarding the Plaintiff and farmers who selected to continue to operate the agriculture in the farmland incorporated into an urban area without selecting the farmer, unlike those who had already been farming or had been subject to heavy taxation before the implementation of the system.

(4) Ultimately, the instant disposition rejecting the Plaintiff’s claim for correction by deeming the instant land as land for non-business use is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is justified as it is so decided, and it is so decided as per Disposition.