Kim Tae (Attorney Ho-young et al., Counsel for the defendant-appellant)

Head of the tax office

March 11, 2005

Daegu District Court Decision 2004Guhap628 Delivered on October 28, 2004

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant's rejection of correction of KRW 43,210,181 for the regular period of 2002 against the plaintiff on June 27, 2003 shall be revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in relation to Gap evidence 1, 2, 4, 10, 11, 13, 14, 15, 3, 3, 1, 3, 1, 3, 3, 1, 3, 5, 4-1, 4-2, and 5-1, 4-2, and 5-1, 4-1 and 4-2, and testimony of the truth-finding witness of the first instance trial.

A. On May 8, 1973, the Plaintiff, who acquired on May 8, 1973, was replaced with the land substitution plan under the Housing Site Development Project Act (hereinafter “instant Housing Site Development Project”) of a group of 2 Ri in Jin-si located in Jin-si located in Jin-si, Jin-si (hereinafter “former land”). The land substitution was made on June 9, 199 as the land substitution for 1220-1 large 1829.7 square meters in Jin-si, Jin-si (hereinafter “instant land”).

B. On April 10, 2002, the Plaintiff transferred the instant land to four (4) persons, such as Nonparty Seo-si, etc., and on April 29, 2002, the Plaintiff made a preliminary return of transfer income tax by making the tax amount to be voluntarily paid to the Defendant as KRW 43,210,181.

C. On the other hand, on April 13, 1998, the Gyeongsan City designated the land substitution plan and the land substitution plan for the instant housing site creation project on April 13, 1998, and announced it on April 20, 199, and approved the alteration of the land substitution plan on April 30, 199, and announced it on May 8, 199.

D. The Plaintiff filed a claim for correction to rectify capital gains tax on the said scheduled return to KRW 1,186,912 on the ground that the date of designation of the scheduled land substitution plan for the instant land was to be deemed to be April 30, 199, which was the date of alteration of the land substitution plan, and that the transfer of the instant land within three years thereafter constituted grounds for capital gains tax reduction under Article 69 of the Restriction of Special Taxation Act. However, the Defendant rendered the instant disposition rejecting the claim for correction on the ground that the first scheduled land substitution plan for the instant land was designated on April 13, 1998, and the instant land was transferred for more than eight years after the lapse of three years, and that there was no reason for correction on the ground that there was no reason for correction.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff asserts that the date of designation of the land substitution plan for the instant land should be April 30, 1999, which is the date of authorization for the change of the land substitution plan, and that the transfer income tax should be reduced or exempted because the instant land was transferred within three years thereafter, it constitutes a self-fluence farmland for at least eight years as stipulated in Article 69 of the Restriction of Special Taxation

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

(1) According to Article 69(1) of the former Restriction of Special Taxation Act (amended by Presidential Decree No. 6705 of Aug. 26, 2002) and Article 66(2)2 and (3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17633 of Jun. 25, 2002), where a person cultivates farmland from the time of acquiring the farmland to the time of transfer for over 8 years, capital gains tax shall be reduced or exempted, but where a person cultivated farmland for over 8 years before the time of replotting is designated as a land as a land as a replotting other than that prior to the time of replotting, the farmland for which 3 years have elapsed from the date of such designation shall not be subject to capital gains tax reduction or exemption. The purport is that, in order to solve the disadvantage of the owner of the farmland due to the implementation of the land creation project, the previous farmland cannot be designated as a land substitution plan prior to the time of transfer, which means 20 years prior to the date of replotting.

(2) According to the above facts, on April 13, 1998, a land substitution plan authorization and the designation of a land substitution plan were publicly announced on April 20, 198, and on April 8, 1999, prior to the transfer of the instant land substitution plan, a part of the designation of a land substitution plan was changed as a result of the first change of a land substitution plan under Article 55 of the former Land Readjustment and Rearrangement Project Act, which was prior to the transfer of the instant land substitution plan, and the public announcement was made on May 8, 199 on April 20, 198, which was the first authorization of a land substitution plan and the public announcement date of the designation of a land substitution plan were effective on April 20, 198, and it was clear that three years have elapsed since the instant land was transferred on April 10, 202, which was the previous land substitution plan, the instant land does not constitute the transfer within three years from the date of the designated land substitution, which is the transfer income

Therefore, the plaintiff's assertion that the land of this case is farmland subject to reduction of capital gains tax under the former Restriction of Special Taxation Act is without merit, and the defendant's disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed and it is so decided as per Disposition.

Judges Hwang Young-young (Presiding Judge)