early 2010 to 0205 (Law No. 13, 2010)

No period of self-determination of eight years may be added to the period of donor and witness.

Even if land is donated to the husband, the cultivation period of donee and donor cannot be added, such as the provision adding up the cultivation period of inheritor and inheritee.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The defendant's rejection disposition against the plaintiff on June 22, 2009 241,424,560 won of transfer income tax for the year 2008 shall be revoked.

1. Details of the disposition;

The following facts may be recognized, either in dispute between the parties, or in full view of the entries in the evidence Nos. 1 through 5 and the purport of the whole pleadings:

A. On December 13, 2005, the Plaintiff, the husband of Han-gun, transferred the instant land to another 1,183,00,000 won, and then reported and paid KRW 241,424,560,560 for the transfer income tax for the year 2008, to the Defendant by applying the provision on the carryover taxation for the carryover taxation for the transfer of the instant land to 1,183,00,000 won.

B. After that, on June 9, 2009, the Plaintiff filed a request for correction to refund KRW 241,424,560 of the transfer income tax reported and paid as stated in the above paragraph (a) on the ground that the Plaintiff and the Deceased’s self-sufficiency period is more than eight years under Article 69 of the Restriction of Special Taxation Act when adding up the period of self-sufficiency of the Plaintiff and the Deceased.

C. As to this, the Defendant rejected the Plaintiff’s application for correction on the ground that the period of self-reliance on farmland donated to the Plaintiff on June 22, 2009 was calculated as the period cultivated by the donee after the donation from the deceased, and that the period of self-reliance on the donor was not aggregated, and that the donor’s application for correction does not comply with the requirements for self-reliance for at least eight years under Article 69 of the Restriction of Special Taxation Act

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on January 17, 2010 on September 21, 2009, but the Tax Tribunal dismissed the Plaintiff’s claim on April 13, 2010.

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

① Even under the current provision of one house non-taxation for one household, where a donee transfers the land of this case to a family member of the same household, the donee is required to determine whether to apply non-taxation by adding up the period from the first acquisition period to the period of the donee in calculating the holding period. ② In the case where the couple's self-sufficiency is common due to the characteristics of agriculture, and the couple's self-sufficiency satisfies the requirements without any other occupation, adding up the period of self-sufficiency is in line with the purport of self-taxation and farmland reduction. ③ The donation of this case is merely a type of donation between the spouse, even if it was actually inherited by the pre-division of inherited property, and as a result, if the deceased sells the land of this case after the death, it would not be subject to the special exception of tax abatement or exemption, even if he was able to receive the special exception of tax abatement or exemption, the Plaintiff and the deceased should add up the period of self-sufficiency in calculating the period of self-sufficiency for the land of this case.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 9276 of Dec. 29, 2008; hereinafter the same) provides that the amount of tax equivalent to 10/100 of the transfer income tax on the income accruing from the transfer of land prescribed by the Presidential Decree, which is cultivated directly by the resident prescribed by the Presidential Decree residing in the location of the land for not less than eight years, shall be reduced or exempted. Article 66(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Act No. 20620 of Feb. 22, 2008; hereinafter the same) provides that the person who has cultivated while residing in the Si/Gun/Gu where farmland is located and the Si/Gun/Gu adjacent to the Si/Gun/Gu where the farmland is located shall be considered as the requirements, and in calculating the period cultivated by the decedent under paragraph (111), the period acquired

(2) Meanwhile, 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 special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, the strict interpretation of the provision that can be seen as clearly preferential provisions among the requirements for reduction and exemption accords with the original rules of tax equity (see Supreme Court Decision 2008Du11372, Aug. 20, 2009).

(3) In this case, in light of the above provisions and legal principles, the Plaintiff asserts to the effect that the total amount of capital gains tax should be reduced or exempted since it exceeds eight years in the cultivation period of a lawsuit under Article 69(1) of the former Restriction of Special Taxation Act in the case of adding up the periods cultivated by the Plaintiff and the deceased, who is a donee. However, unlike the provision that the period of cultivation by the heir and the deceased should be added up in the case of inheritance, in the case of donation, there is no provision that the donee and the donor should add up the cultivation period of the deceased. Article 69(1) of the former Restriction of Special Taxation Act provides that the total amount of capital gains tax shall be reduced or exempted in the case of transfer of cultivated farmland, and it is a clear preferential provision that the entire amount of capital gains tax shall be reduced or exempted in the case of transfer of the land in this case. ② The Plaintiff asserts to the effect that the donation of this case constitutes a substantial inheritance, but there is no evidence to acknowledge it as a prior division of inherited property. ③ The Plaintiff’s assertion that this case’s provision does not have any reasonable grounds to interpret the above.

(4) Therefore, the instant disposition that the Defendant rejected the Plaintiff’s request for correction on the premise that the Plaintiff satisfies the requirements for self-reliance under Article 69 of the Restriction of Special Taxation Act is justifiable.

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.