Busan District Court-2014-Gu Partnership-2165 ( November 20, 2014)

A person who has applied for reduction or exemption of capital gains tax on his own farmland shall bear the burden of proof for the requirements of reduction or exemption.

The purpose of the legislation of capital gains tax reduction regulations for self-arable farmland is to reduce the tax burden due to the transfer of farmland as part of the land farming policy, and the burden of proof for the requirements of such reduction or exemption is the taxpayer who asserts the exemption of capital gains tax.

Article 69 of the Restriction of Special Taxation Act (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

Busan High Court 2014Nu23192

Park ○

○ Head of tax office

Busan District Court Decision 2014Guhap2165 Decided November 20, 2014

June 17, 2015

August 26, 2015

1. The plaintiff's appeal is dismissed

2. Costs of appeal shall be borne by the Plaintiff.

1. Purport of claim

The judgment of the first instance shall be revoked. The defendant shall transfer income accruing from October 1, 2013 to the plaintiff in 2012.

The imposition of tax of KRW 229,985,860 (including additional tax of KRW 33,198,510) shall be revoked.

1. Quotation of the reasons for the judgment of the first instance;

The reasons why this Court shall explain with respect to the instant case shall be as follows:

Except as provided in paragraph (2) below, the first instance court shall add a new determination on a new argument at an elevated level.

Therefore, Article 8(2) of the Administrative Litigation Act, the main sentence of Article 420 of the Civil Procedure Act is the same as the reasoning for the judgment.

this shall be cited by the court.

-Each of the former Restriction of Special Taxation Act (2011) in Part 2, No. 16 and No. 9 of the first instance judgment

12. The former Restriction of Special Taxation Act (amended by Act No. 11133, Jan. 26, 2012);

The Civil Code No. 11232 is amended by the Act No. 11232, and the Civil Code No. 7 is amended by the Civil Code No. 5

-No. 15 of the first instance judgment, No. 20 and No. 14 of the first instance judgment, and No. 15 of the first instance judgment

by adding each of the evidence of heading 17 to

2. Determination on new arguments made by the Plaintiff in the trial

A. Summary of the argument

“1) Direct cultivation” under Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act refers to a person who is regularly engaged in the cultivation of crops, the cultivation of perennial plants, or at least 1/2 of farming operations.

The above enforcement decree provides that the cultivation or cultivation by labor force shall be made, and the above enforcement decree provision shall not apply:

Since it is virtually impossible to measure the quantity of farming work, it is not against the principle of clarity.

(d) whether or not another person’s labor force has been invested with the same labor force, or its percentage;

"A direct cultivation may vary depending on this high and low level, which goes against the principle of equality," therefore, the above enforcement decree provision is null and void. Thus, the disposition of this case based on it is unlawful.

“2) Even if the Plaintiff did not appear to have "requirements for self-reliance for reduction or exemption of capital gains tax pursuant to the above Enforcement Decree", ParkB, the Plaintiff's reference, was from permission on December 30, 1976.

To purchase land and complete the registration of ownership transfer in the name of the plaintiff, the title of the land to the plaintiff

from around that time, ParkB-B died on April 21, 2007 as the actual owner.

(i) Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act (i.e., Article 66 of the same Act).

Where a heir cultivates inherited farmland continuously for not less than one year, the cultivation period map of the decedent shall also be the farmland of the decedent.

The period cultivated by ParkB according to the farmer's cultivation period shall be deemed as the period of cultivation by the plaintiff.

section 1.

Therefore, the plaintiff's disposition of this case is unlawful because it is "the requirement for self-determination of capital gains tax reduction."

1) Whether Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act is null and void

A) First, we examine whether the above enforcement decree provisions are contrary to the principle of clarity.

Legal assistance in examining what legal provisions violate the principle of clarity.

subsection (1) of this section has general abstractness and is always a supplementary action of the judge at all times.

The meaning can be embodied and clarified through the interpretation of the principle of no taxation without law. This will be subject to the application of no taxation without law.

Since the tax law is different in the field of tax law, the provisions of the tax law are the general theory of the relevant tax law.

If its meaning can be clear in light of its structure and purpose of legislation, it is clear that the taxation requirements can be established.

The problem of the principle of clarity of taxation requirements cannot be said to be in violation of the laws of taxpayers.

It can be predicted that an act constitutes an object of taxation in question.

(a) the application of the law in a arbitrary and discriminatory manner to the position of an administrative authority;

shall require a comprehensive judgment in accordance with the criteria, such as whether to grant the possibility of such action.

11. Constitutional Court en banc Decision 201Hun-Ba22 Decided 28.

Article 69 (1) of the former Restriction of Special Taxation Act provides that capital gains tax may be reduced or exempted in the manner prescribed by Presidential Decree, "by direct cultivation", "Article 69 (1) of the former Restriction of Special Taxation Act", "by delegation, prescribed by Presidential Decree", and "self cultivation by the method" means that a resident engages in the cultivation of crops or the growing of perennial plants on his own land at all times or with 1/2 or more of his own work for cultivating, cultivating or cultivating them by using his own work. The above Enforcement Decree of the Special Taxation Act provides that "any direct cultivation by the method prescribed by Presidential Decree", "by the delegation of the mother law."

The subject, method, degree, etc. corresponding to the "direct farming" is sufficiently specific and clear, and the taxpayer is difficult to anticipate it, or the tax authority has arbitrarily caused it.

It is difficult to see that there is a possibility to apply the law. In addition, whether the provision of the above Enforcement Decree corresponds to 1/2 of the Act or 1/2 of the Act or 1/2 of the Act or not can be sufficiently determined through the complementary interpretation of the judge. Thus, the above Enforcement Decree provision does not go against the principle of clarity.

B) Next, we examine whether the above enforcement decree provisions are against the principle of equality.

The principle of equality under the Constitution does not prevent discrimination with reasonable grounds;

As seen earlier, the above provision of the Enforcement Decree provides that capital gains tax reduction shall be granted to a person with less than a certain period.

"Preferential measures of taxation giving benefits," and such preferential measures of taxation shall be designed to achieve certain policy objectives by inducing taxpayers to work in their economic activities and by inducing taxpayers to a limited direction.

Constitutional Court Decision 2007Hun-Ba27 Decided February 26, 2009

The Constitutional Court Order, 2003HunBa72 delivered on February 24, 2005, see Supreme Court Order 2003HunBa72 delivered on February 24, 201

In the imposition of income tax, it is actually based on the substance over form principle, which is the basic principle of the Income Tax Act.

Encouragement of agricultural development by giving preferential treatment to farmers engaged in agriculture for a long time and the population of rural communities;

In order to prevent reduction, one's own labor force (i.e., farming) equivalent to a certain amount of excess;

Reduction or exemption of capital gains tax between a person who has cultivated in at least 1/2 of the business and a person who has failed to meet such standards.

It constitutes discrimination with reasonable grounds, and thus, the principle of equality.

It is difficult to regard it as discrimination against violation.

C) Therefore, the Plaintiff’s above assertion is without merit.

2) As to the assertion on title trust

The plaintiff was merely 9 years old at the time when the plaintiff acquired the land of this case and was put to the plaintiff.

ParkB appears to have borne the purchase cost of the land in this case, and whether ParkB died.

b. The fact that the land of this case was substantially managed is as seen earlier, but the plaintiff ParkB.

land owned by ParkB after the death of such ParkB shall not be the upper part of the farmland owned by the heir as the remaining part of the heir.

The plaintiff seems to have succeeded to most of the plaintiff through the division of property, see Gap evidence 19), ParkB

It is difficult to find out the reason or necessity for title trust to the Plaintiff with respect to the instant land.

The title trust is held that ParkB purchased the instant land and made its ownership the Plaintiff.

It is reasonable to deem that the instant land was donated to the Plaintiff, South Korea, rather than to the extent that it was donated to the Plaintiff, and otherwise

The high-priced evidence alone lacks to recognize the fact of title trust as alleged above by the Plaintiff.

C.

Therefore, the plaintiff's above assertion is without merit without further review.

3. Conclusion

Then, the plaintiff's claim shall be dismissed as it is without merit, and this conclusion shall be delivered to the court of first instance.

Since the judgment is justifiable, the plaintiff's appeal is dismissed.