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조세심판원 조세심판 | 2020-05-10 | 조심2019중3710 | 양도
【Request Number】

early trial 2019 middle3710 (2020.11)

[세 목]

Transfer

[Types of Decision]

Dismissal

[Summary of Decision]

Since the requirements such as “land acquisition ratio” and “not less than 1/2” of the relevant provisions are clearly calculated in numerical value, it is difficult to view them as unclear requirements that may be interpreted arbitrarily. The key Enforcement Decree can be seen as transitional provisions prepared to protect the trust of farmland owners who are subject to the reduced reduction or exemption limit as a result of transfer of farmland after enforcement of the amended provisions due to delay in purchase consultation, etc., and the determination of the unconstitutionality of the Enforcement Decree, which is the premise of the judgment, is the jurisdiction of the court and the determination of the unconstitutionality of the law, is the jurisdiction of the Constitutional Court, and the request for a trial cannot be the scope of determination of our won, in light of the fact that the disposition authority imposed capital gains tax on the claimant

[Related Acts]

Article 69 of the Restriction of Special Taxation Act

【Reference Decision】

early 2015west082

[주 문]

The appeal is dismissed.

[이 유]

1. Summary of disposition;

A. On January 14, 2016, an applicant transferred 2,637 square meters of land located in OO located in a gift on June 29, 191 (hereinafter referred to as “marketed land”) on the ground of OO expropriation, and subsequently filed a preliminary return of capital gains tax by applying the limit of capital gains tax reduction to OO0 million won pursuant to Article 133(1)1 (b) of the Special Act on the Regulation of Special Taxation (amended by Act No. 13560, Dec. 15, 2015) on the ground that the land at issue is subject to reduction or exemption under Article 69 of the Restriction of Special Taxation Act (hereinafter referred to as “Special Act”).

B. As a result of examining the appropriateness of the details of the comprehensive return on reduction or exemption for the claimant in 2016, the disposition agency denied the amount of O0 million won among the abated or exempted tax reported by the claimant under Article 133(1)1 of the Specialized Law (wholly amended by Act No. 13560, Dec. 15, 2015) by denying O0 million won among the abated or exempted tax amount reported by the claimant, and notified the applicant of the correction and notification of OO of the capital gains tax for the year 2016.

C. The claimant appealed and filed an appeal on September 24, 2019.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

(1) Article 39 of the Addenda to the Enforcement Decree of the Special Assistance Act (wholly amended by Presidential Decree No. 26959, Feb. 5, 2016) (hereinafter referred to as “instant Enforcement Decree”) is null and void by the Enforcement Decree against the principle of clarity of taxation requirements, the principle of trust protection, and the principle of tax equality.

(A) The principle of clarity of taxation requirements is aimed at achieving the predictability of taxpayers and the legal stability of the national economic life, and the main rule of the Enforcement Decree is a transitional provision of the new law that has been reduced to KRW 00,000,000,000 of capital gains tax reduction ceiling under the former Act, which stipulates that the executor of the relevant public works project shall apply only to the project area where the land was acquired at least 1/2 of the total project area as of December 31, 2015, and accordingly, the landowner in the project area for the public works, which was in progress on December 31, 2015, has a difference between the tax amount to be paid according to the ratio of land acquisition by the

Therefore, if a taxpayer has predictability on the transfer income tax amount that varies due to the rules of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter "Land Compensation Act"), the landowner who is a taxpayer under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter "Land Compensation Act") can not know at all the tax amount to be paid until the preliminary return of the transfer income tax because he/she had no way to know the ratio of land acquisition by the project operator, which is unconstitutional and invalid against the principle of clarification of tax requirements.

(B) The amendment and repeal of laws, regulations, and systems related to the rights and obligations of the people requires to protect reasonable trust that the continued legal relations or systems within the previously fixed administrative law order will continue in the future. The individual trust on the continued existence of the existing system is required to protect the above trust in cases where the grounds and types of the lost trust, the loss of trust and the degree of damage are superior to the public interest in order to promote the new system. Such principle of trust protection applies not only to the law but also to the amendment and repeal of the rules such as subordinate laws and regulations (the Constitutional Court Order 92Hun-Ma68 delivered on October 1, 1992), and tax preference for the long-term self-employed farmland has been reduced several times after it was introduced into a non-taxation system under the Income Tax Act on December 24, 1974, but has always been protecting the trust of the existing landowners.

In particular, when the ratio of land acquisition by a project implementer does not constitute 1/2 of the total project area, capital gains tax equivalent to O00 million won is imposed on a farmland owner who does not have any right to make any decision on the ratio of land acquisition, etc. on the other hand, the public interest that can be gained by limiting the application of the above transitional measures to the ratio of land acquisition by a project implementer is unclear, and there is no inevitable reason that the criteria should be 1/2. Therefore, the trust of the capital gains tax reduction system by a farmland owner who owns own land for at least eight years should take precedence over the above public interest, and the major Enforcement Rule shall be null and void in violation of the principle of trust protection.

(C) The principle of equality under the Constitution is also applicable to tax administration, and when considering the mutual relationship between taxpayers, if there is no reasonable ground to equal discrimination or treatment between taxpayers and is merely a arbitrary measure of the tax authority, it shall be deemed unconstitutional as it violates the principle of equality.

The main rules of the Enforcement Decree of the Act discriminates against the land owners obliged to transfer the land to the project implementer on December 31, 2015, when the project implementer acquired at least 1/2 of the total project area (O00 million won) and less than the acquisition (O00 million won). The above two groups of land owners are essentially the same group of group in that (i) the same land should be transferred to the same project implementer due to the same public works, (ii) the same land should be transferred to the same project implementer, and (iii) the farmland shall be subject to exemption from capital gains tax for at least eight years.

Even if it is decided to the effect that the previous provisions will be applied only to public works which are considerably advanced on the basis of the time of promulgation of the rules in the main Enforcement Decree, it is insufficient to establish the grounds for rationalizing the above discrimination in light of the following: (i) both groups are essentially identical in nature; (ii) land acquisition ratio presented by the rules in the main Enforcement Decree is a requirement for a project operator, and (iii) land owners do not have any right to make any decision from the standpoint of the landowner; and (iv) there is no legal device for obtaining information thereon; and (iii) in the case of discrimination, the transfer income tax of maximum OO00 million won is imposed; and (iv) the degree of discrimination in the disposition of imposing tax is significant. Therefore, the rules in the main issue should be null

(2) Article 63 of the Addenda to the Special Rule of Law (wholly amended by Act No. 13560, Dec. 15, 2015) (hereinafter “Special Rule of Law”) (hereinafter “Special Rule of Law”) is a provision of law which is unconstitutional in violation of the legal requirements of taxation, the principle of protection of trust, and the principle of tax equality.

(A) The delegated legislation of the tax law must specify the scope and scope of delegation, and it should be able to predict the general principles of delegation from the pertinent law, and in particular, in the case of the tax law that is likely to directly restrict or infringe on the basic rights of the people, the requirements and scope of delegation should be more strict and limited (the Constitutional Court Order 94Hun-Ba40 delivered on Nov. 30, 1995).

Therefore, in cases where the Presidential Decree provides for the requirements of reduction and exemption directly affecting the duty to pay taxes, such as the reduction and exemption ratio, without specific grounds in the law, it exceeds the limit of the delegated legislation, and where the parent law delegates such delegation, it constitutes a blanket delegation (the Constitutional Court Order 93HunBa2, Jun. 26, 1996; the same purport is the same).

However, in the case of the main legal rules based on the instant disposition, the scope of delegation is only “requirements prescribed by Presidential Decree, such as the ratio of the project operator’s land acquisition in the project area” and the scope of delegation is “requirements prescribed by Presidential Decree, such as the ratio of the project operator’s land acquisition in the project area.” In addition, only one example of the project operator’s land acquisition ratio is the project operator’s land acquisition ratio, the actual application of capital gains tax reduction or exemption is in fact entrusted to the executive branch; ③ the standards for determining the project operator’s land acquisition ratio according to delegation by Presidential Decree or the purpose to consider in determining the ratio is not provided, and the mother law alone cannot at all predict that any case is subject to protection or not in the enforcement decree; ④ The taxpayer’s land acquisition ratio cannot be known at the time of transfer; thus, the provisions of the mother law alone cannot be said to be a source to determine whether the project operator’s land acquisition ratio is subject to protection of transitional measures. Accordingly, the main legal rules are unconstitutional against the principle of prohibition

(B) The reason why the rules of law are unconstitutional in violation of the principle of trust protection and the principle of tax equality is invoked in the contents of (b) and (c) (the reasons why the rules of law enforcement are unconstitutional in violation of the principle of trust protection and the principle of tax equality).

(3) As above, this taxation by this case based on the enforcement decree of the invalid issue should be revoked. Even if the enforcement decree does not become invalid, this taxation by this case based on the enforcement decree of the law, which is unconstitutional, should be revoked.

Furthermore, the main rules of the law also conflict with the principle of prohibition of comprehensive delegation, and are unconstitutional law in violation of the principle of trust protection and the principle of equality of taxes.If the main rules of the law are unconstitutional, the main rules of the Enforcement Decree, which is the parent law, are also invalid, and the transfer income tax disposition based on the above law, should be revoked because there is a serious defect

(b) Opinions of disposition agencies;

(1) As to the claim claim that the rules of the main decree are invalid in violation of the principle of clarity of taxation requirements, the principle of trust protection, and the principle of tax equality.

(A) Under the Rule of the Enforcement Decree of the Issues, the term “project area that meets the requirements prescribed by Presidential Decree” means a project area where the operator of the relevant public project acquired at least 1/2 of the total project area as of December 31, 2015, and the claimant was sufficiently able to request the relevant data from the project operator and can obtain the relevant information by the deadline for filing a return of capital gains tax, and thus, it is clearly confirmed that the requirements for reduction and exemption

In addition, in cases similar to this case, it is confirmed that information on the ratio of land acquisition has been provided by the project operator and reflected in the preliminary return and related documents have been attached to it, and it is clear that the taxation requirements have been made clear and that it was a situation that

(B) There is no reason to deem that the rules on the issues have been prepared as a transitional provision in order to protect taxpayer's trust in the policy process of reducing the limit of reduction and exemption, and that there was no reason to conclude that the business area requirements were stipulated and the applicant's trust was lost

(C) In addition, the claimant asserts that the project implementer discriminates against the project implementer that he/she acquires at least 1/2 of the total project area (OO00,000,000 won) and the acquisition of less than the limit (O00,000 won).

However, according to the review report on the amendment of the special law of the relevant planning and arbitration committee, the rules of the enforcement decree have been prepared according to the opinion that the person who transferred farmland at his own discretion after the enforcement of the amended law may be subject to the reduction or exemption limit, and the problem of equity in the same business area may be raised.

In light of these legislative intent, the acquisition ratio of land on December 31, 2015 to the project implementer related to the claimant is merely 19.46%, and there is no reason to claim that the policy purpose of discrimination is unclear.

(2) Although the claimant asserts that the main rule of law is an unconstitutional law in violation of the taxation requirements, the principle of trust protection, and the principle of tax equality, it is not subject to review by the tax authority.

3. Hearing and determination

A. Key issue

(1) Whether the Enforcement Decree of the Issues related to the amended provisions that reduce the limit of reduction or exemption is null and void in violation of the principle of clarity of tax requirements, the principle of tax equality, and the principle of trust protection.

(2) Whether the rules of law related to the amended provisions that reduce the limit of reduction or exemption violate the taxation requirements legal principles, the principles of trust protection, and the principles of tax equality.

B. Relevant statutes

(1) Restriction of Special Taxation Act

Article 69 (Reduction or Exemption of Transfer Income Tax on Self-Cultivating Farmland) (1) With respect to any income accruing from the transfer of land prescribed by Presidential Decree, among land cultivated directly by a resident prescribed by Presidential Decree who resides in the seat of farmland for not less than eight years by the methods prescribed by Presidential Decree, the tax amount equivalent to 100/100 of the transfer income tax shall

(A) What was partially amended by Act No. 13560 on December 15, 2015 (related to new provisions)

Article 133 (Aggregate Ceiling of Reduction and Exemption of Transfer Income Tax and Gift Tax) (1) Of the aggregate amount of transfer income tax to be reduced or exempted for an individual pursuant to Articles 33, 43, 66 through 69, 69-2, 70, 77, 77-2, 77-3, 85-10 or Article 29 of the Addenda of Act No. 6538, the larger of the following amounts shall not be reduced or exempted:

1. Where the total amount of capital gains tax to be reduced or exempted pursuant to Articles 33, 43, 66 through 69, 69-2, 70, 77, 77-2, 77-3, 85-10 of this Act or Article 29 of the Addenda of Act No. 6538 exceeds 10 million won by taxable period, an amount equivalent to such excessive portion;

Addenda (wholly amended by Act No. 13560, Dec. 15, 2015)

Article 1 (Enforcement Date) This Act shall enter into force on January 1, 2016.

Where capital gains tax is reduced or exempted pursuant to Article 69 of the Act, which is subject to the application of the reduction or exemption of capital gains tax under Article 63 of the Act, and where the land within the project area which meets the requirements prescribed by Presidential Decree, such as the ratio of land acquisition by the project operator, among the project areas for which a public announcement of project approval has been made pursuant to Article 22 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects before this Act enters into force, is transferred to the project operator of the relevant public project on or before December 31, 2017, the previous

(B) Before the partial amendment by Act No. 13560 on December 15, 2015 (related to the former Provisions)

Article 133 (Aggregate Ceiling of Reduction and Exemption of Transfer Income Tax and Gift Tax) (1) Of the total amount of transfer income tax to be reduced or exempted by an individual pursuant to Articles 33, 43, 66 through 69, 69-2, 70, 77, 77-3, 85-10 or Article 29 of the Addenda to Act No. 6538, the larger of the following amounts shall not be reduced or exempted:

1. The larger of the following amounts calculated by taxable period:

(b) Where the total amount of capital gains tax to be reduced or exempted pursuant to Articles 33, 43, 66 through 69, 69-2, 70, 77, 77-3, 85-10 of this Act or Article 29 of the Addenda of Act No. 6538 exceeds 200 million won by taxable period, an amount equivalent to the exceeding part;

(2) Enforcement Decree of the Restriction of Special Taxation

Enforcement Decree of the Issues (wholly amended by Presidential Decree No. 26959, Feb. 5, 2016)

"Project area that meets the requirements prescribed by Presidential Decree" in Article 63 of the Addenda to the partially amended Act (Act No. 13560) of the Act on the Restriction of Special Taxation (Act No. 13560) means a project area in which the operator of the relevant public project acquires land of at least 1/2 of the total project area as of December 31, 2015.

C. Facts and determination

(1) The following facts are revealed according to the review materials submitted by the disposition agency and the materials submitted by the claimant.

(A) Examining the details of the applicant’s return of capital gains tax and the details of the disposition agency’s correction, the transfer value is the same as the OO, but the tax amount reduced or exempted is O00 million won at the time of correction, while the tax amount reduced or exempted at the time of correction is

(B) Examining the content of the review of the appropriateness of the limit of capital gains tax exemption for the claimant of the disposition agency, the key land is the acquisition by consultation on public land, and the authorization of the project approval is the acquisition by consultation on public land, and the result of the disposition agency’s request for OO data (development planning team-561), but the acquisition area as of the base date is 18,564 square meters of total business area (18,564 square meters of total business area) and is confirmed to have failed to meet the requirements of the ratio of land acquisition in the project area (1/2 or more of the acquisition area).

(2) We examine the above facts and relevant laws and regulations comprehensively.

(A) In relation to the issue ①, the claimant’s claim that the enforcement decree of the major issue is invalid against the principle of clarity of tax requirements, on the grounds that the claimant’s land acquisition ratio cannot be known by the deadline for filing a tax return. However, the principle of clarity of tax requirements is a principle to prevent cases where the tax authorities arbitrarily interpret the taxation requirements set abstract and ambiguously and thereby arbitrarily and thereby put taxpayers at a disadvantage. The requirements of the pertinent provision (hereinafter “project area in which the project operator’s land acquisition ratio as of December 31, 2015 is at least 1/2 of the total project area) and “not less than 1/2 of the total project area” are clearly calculated by the numerical value, and it is difficult

In addition, although the OO acquired the land at issue by accepting it is an institution subject to the Official Information Disclosure Act, which provides detailed guidance on the procedures for requesting information disclosure and related objection procedures under the above Act on its website, it appears that the claimant has made a request for information disclosure on the ratio of land acquisition to the OO. In such a situation, it is difficult to readily conclude that the Enforcement Rule of the Act is contrary to the principle of clarity of tax requirements because the ratio of land acquisition cannot be known.

In addition, the claimant's provision that reduces the capital gains tax reduction limit of O00 million won that is not anticipated to the owner of farmland who is not aware of the ratio of land acquisition without any decision right on the ratio of land acquisition by the project operator is contrary to the principle of trust protection, so it is invalid. However, the main rule can be seen as a transitional provision prepared to protect the trust of the owner of farmland who is subject to the reduced limit of capital gains tax reduction due to the transfer of farmland after the enforcement of the amended provision due to the delay of purchase consultation.

On the other hand, the claimant asserts that the limit of reduction or exemption is null and void because it is against the principle of tax equality by dividing farmers who transferred farmland to the State in eight years in accordance with the ratio of land acquisition by the project implementer. However, the main rule appears to have been prepared for equity among the farmland transferor in the same project area where the transfer timing differs, so that the limit of reduction or exemption that is to be applied by the amendment can rather be applied to the farmland owner subject to the application of the limit of reduction or exemption that is to be applied by the amendment, thereby complying with the principle of tax equality.

Therefore, it is difficult to accept the claim purport that the rules of the Enforcement Decree of the case are invalid because they are contrary to the principle of clarity of taxation requirements, the principle of trust protection, and the principle of tax equality.

(B) In addition, the claimant asserts that the main rule of the Enforcement Decree violates the principle of clarity of taxation requirements and the principle of equality under the Constitution, and thus, the main rule of the law is unconstitutional (defluence ②), which also violates the principle of taxation requirements, the principle of trust protection, and the principle of tax equality, and thus, the tax assessment of the transfer income tax should be revoked.

However, in light of the fact that the judgment of unconstitutionality of the enforcement decree, which is the premise of the judgment, is the jurisdiction of the court, and the judgment of unconstitutionality of the law is the jurisdiction of the Constitutional Court, and the authority of the court to make a request for the trial cannot be the scope of judgment of our source, it is judged that the disposition of this case imposed capital gains tax on the claimant was not erroneous (the same meaning is the same as the court below 2015Do882

4. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65(1)2 of the Framework Act on National Taxes because the petition for review results is without merit.

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