Disposition that excludes the reduction or exemption of gift tax because a public official does not engage directly in farming;

In order to be exempted from gift tax, the lineal descendant of the donated donation shall be engaged in farming, and in case where the lineal descendant of the donated lineal descendant indirectly attempts the agriculture of the donor while emphasizing to another occupation, it shall not be deemed that such lineal descendant constitutes farming children as seen earlier.

Article 58 of the Regulation of Tax Reduction and Exemption Act shall exempt farming children from gift tax on farmland, etc. donated.

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 gift tax of KRW 26,69,880 against the Plaintiff on August 12, 2004 is revoked.

1. Details of disposition;

On December 31, 2003, the Plaintiff, the father of the Plaintiff, donated ○○○○○, ○○-dong, 413-2, 873 square meters of farmland, 949 square meters (hereinafter “the farmland in this case”), and on March 30, 2004, the Plaintiff applied for reduction of or exemption from gift tax on the ground that the Plaintiff was a farmland donated to the Defendant pursuant to Article 58(1) of the former Regulation of Tax Reduction and Exemption Act (wholly amended by Act No. 5584, Dec. 28, 1998). However, on August 12, 2004, the Defendant imposed a gift tax of KRW 26,69,80 on the Plaintiff on the ground that the Plaintiff cannot be recognized as a farming child (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 5 through 8 (including paper numbers; hereinafter the same shall apply), Eul evidence 1, the whole purport of oral argument

2. The assertion and judgment

A. Summary of the plaintiff's assertion

Since the instant disposition has significant and obvious defects as follows, ① the Defendant made the instant disposition without pre-assessment review, and ② the Plaintiff was erroneous in determining that the Plaintiff did not self-refluence even though the Plaintiff actually cultivated the instant land, the instant disposition is null and void.

B. Relevant statutes

(1) Addenda to the Restriction of Special Taxation Act (wholly amended by Act No. 5584, Dec. 28, 1998) (wholly amended by Act No. 6297, Dec. 29, 200)

Article 15 (Transitional Measures concerning Exemption of Gift Tax on Farmland, etc. Given to Farming Children) (2) With respect to farmland, etc. subject to exemption of gift tax pursuant to Article 58 (1) of the previous Regulation of Tax Reduction and Exemption Act at the time this Act enters into force, which is donated to farming children by a self-employed farmer on or before December 31, 2003, the gift tax shall be exempted pursuant to Article 58 (2) through (5) of the previous Regulation

(1) The former Regulation of Tax Reduction and Exemption Act (amended by Act No. 5584, Dec. 28, 1998; hereinafter the same shall apply)

Article 58 (Exemption from Gift Tax on Farmland, etc. Given to Farming Offsprings)

(1) Where a farmer who is self-employed as prescribed by the Presidential Decree (hereafter referred to as "self-employed farmer" in this Article) donates farmland, grassland, or forest land (hereafter referred to as "farmland, etc." in this Article) falling under any of the following subparagraphs to his/her lineal descendants who are engaged in farming as prescribed by the Presidential Decree (hereafter referred to as "farmland, etc." in this Article), the gift tax on the value of such farmland, etc. shall be exempted. In this case, the farmland, etc. exempted from the gift tax

1. Farmland, etc. falling under any of the following items:

(a) Farmland which is subject to the farmland tax under the Local Tax Act (including the case of non-taxation, reduction and exemption and non-collection of small amount), and is not more than 29,700§³;

2. Farmland, etc. located outside a residential, commercial or industrial area under Article 17 of the Urban Planning Act;

3. Farmland located outside the prearranged area of housing site development under the Housing Site Development Promotion Act and other development project area as prescribed by the Presidential Decree; and

(1) A tax reduction and exemption Act (wholly amended by Presidential Decree No. 15976, Dec. 31, 1998)

Article 57 (Exemption from Gift Tax on Farmland, etc. Given to Farming Offsprings) (1) The term “self-employed farmer prescribed by the Presidential Decree” in the main sentence of Article 58 (1) of the Act means a person meeting all of the following requirements:

1. The person shall reside in a Si/Gun/Gu (referring to an autonomous Gu; hereafter the same shall apply in this Article) in which the relevant farmland, etc. is located or a Si/Gun/Gu that has deferred with it;

2. He shall be engaged directly in farming for not less than 2 years retroactively from the date of donation of the relevant farmland, etc.

(2) The term “ lineal descendants engaged in farming as prescribed by the Presidential Decree” in the main sentence of Article 58 (1) of the Act means the lineal descendants of a person meeting the requirements under paragraph (1) who are 18 years of age or older as of the donation date of the relevant farmland, etc. and meet all the requirements under each subparagraph of paragraph (1): Provided, That in the case of a farming planner prescribed by the Ordinance

C. Determination

(1) Determination of procedural defect assertion

In full view of the evidence mentioned above, Eul evidence, Eul evidence Nos. 2 through 5, 8, 9, and Gap evidence No. 4, the defendant sent a notice prior to the disposition of this case to the plaintiff on July 12, 2004, and the plaintiff submitted a request for correction to the effect that "the plaintiff is a farming child, and thus the plaintiff is exempted from gift tax." However, on August 3, 2004, the defendant sent a notice of disposition of this case to the plaintiff on August 10, 2004, and the defendant sent the notice of disposition of this case to the plaintiff on August 13, 2004, and the defendant did not make a separate request for pre-assessment review in addition to the submission of the above request for correction. In general, the defect in the procedure or form of the disposition of this case is not a ground for revocation, and there is no specific evidence as to the plaintiff's legitimate request for pre-assessment review meeting the requirements prescribed by the plaintiff. Thus, the plaintiff's assertion that the disposition of this case is invalid is without merit.

(2) Judgment on the assertion of substantive defects

(A) In full view of the aforementioned evidence, Gap evidence, Eul evidence Nos. 3, 9, 10, Eul evidence Nos. 6, 7 and all the arguments, the plaintiff is working as a local public official from February 1, 1984 to the date of the move-in report to ○○○○○, 43-20 on May 20, 200, and is registered as the resident of the above domicile until October 7, 2000. However, in fact, the plaintiff was living together with his family in the apartment house located in Jeonju-si, where the place of work is located. ② The plaintiff participated in the farming of this case during the weekend or vacation period, and the dry field among the farmland of this case, the plaintiff was currently working for 7 years or 4 years old, 1200, 1,200, 200, and 4 years old from the date of the move-in moving-in report to ○○○○, 00,000 farmland.

(B) In order to be exempted from the gift tax following the donation of farmland, if the lineal descendant of the donated lineal descendant is engaged in farming, and if the lineal descendant of the donated lineal descendant indirectly intended to engage in agriculture of the donor while emphasizing to another occupation, it shall not be deemed that the lineal descendant of the donor is the above farming child. Thus, the above recognition alone is difficult to regard the "the former Tax Reduction and Exemption Control Act" as the "the plaintiff has engaged directly in farming for not less than two years retroactively from the date of the donation of the farmland of this case, and there is no other evidence to acknowledge it. Therefore, the plaintiff's assertion that the disposition of this case is invalid due to the substantive defect that the defendant did not recognize even though it

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Supreme Court Decision 2007Du23804, Oct. 17, 2008]

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

We examine the grounds of appeal in comparison with the records and the judgment of the court below. Since it is clear that the grounds of appeal by the appellant fall under Article 4 of the Act on Special Cases Concerning the Procedure for Appeal, it is dismissed under Article 5 of the same Act. It is so decided as per Disposition by the assent