Daejeon District Court 2009Guhap852 (2009.08)

Cho High Court 2008 Before 0505 ( November 28, 2008)

An indirect management of agriculture by transferring to another occupation can not be considered as a farming child.

Since it is judged that the company's employee was merely an indirect management of agriculture while performing his duties, it cannot be viewed that the company engaged directly in farming continuously for not less than two years retroactively.

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

Article 58 (Exemption of Gift Tax on Farmland, etc. Given to Farming Children)

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The disposition of imposition of KRW 24,570,670 against the plaintiff on July 10, 2007 by the defendant shall be revoked.

1. Circumstances of the disposition;

가. 원고는 2006. 11. 17. 부(父)인 이★★으로부터 **시 **면 ☆☆리 132-1 답 935㎡ 및 132-2 답 1,575㎡(이하 '이 사건 각 토지'라 한다)를 증여받았다.

B. On January 9, 2007, the Plaintiff, as a farming child, was donated each of the instant land to the Defendant by the father who is a self-employed farmer, applied for reduction and exemption of gift tax pursuant to Article 58(1)1(a) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 5584 of Dec. 28, 1998, hereinafter the same shall apply), Article 57(1) and (2) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 15976 of Dec. 31, 1998, hereinafter the same shall apply), Article 15(2) of the former Restriction of Special Taxation Act (amended by Act No. 5825 of Feb. 8, 199, hereinafter the same).

C. On July 10, 2007, the Defendant rendered a disposition imposing gift tax of KRW 24,570,670 on the Plaintiff (hereinafter “instant disposition”) on the ground that each of the instant lands is not subject to the said respective provisions.

D. On January 28, 2008, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but the Tax Tribunal rendered a ruling dismissing the Plaintiff’s claim on November 28, 2008.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 7, 9, Eul evidence No. 1 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

(a) a master of the Party;

The defendant asserts that each of the land of this case does not fall under the object of gift tax exemption, since the plaintiff had been directly engaged in farming for not less than two consecutive years retroactively as of January 1, 1999, which was the date of enforcement of the former Restriction of Special Taxation Act.

The plaintiff asserts that the disposition of this case by the defendant, based on the premise that the plaintiff is not a farming child, is illegal even though the plaintiff was directly engaged in farming for at least two years retroactively from the date of donation of each land of this case as well as the date of donation of each land of this case as of January 1, 1999, which was the enforcement date of the former Restriction of Special Taxation Act, because the plaintiff was donated each land of this case by the self-employed farmer as a farming child.

(b) Related statutes;

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) In light of the principle of no taxation without law, or the requirements for tax exemption or exemption, the interpretation of tax laws shall be interpreted as the text of the law, barring any special circumstances, and it shall not be permitted to expand or analogically interpret without reasonable grounds, and in particular, it is also consistent with the principle of fair taxation to strictly interpret the provisions that can be seen as clearly preferential provisions among the requirements for tax exemption or exemption (see Supreme Court Decision 2003Du7392, May 28, 2004).

Article 15(2) of the Addenda of the former Restriction of Special Taxation Act provides that gift tax shall be exempted pursuant to the former Regulation of Tax Reduction and Exemption Act with respect to farmland, etc. subject to exemption of gift tax at the time of the enforcement of the Act, which is subject to Article 58(1) of the former Regulation of Tax Reduction and Exemption Act, and Article 57(1) and (2) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act requires that one of the requirements for farming children exempted from gift tax on donated farmland be engaged directly in farming for at least two years retroactively from the date of donation.

In light of the above, Article 15 (2) of the Addenda of the Restriction of Special Taxation Act provides that when a farming child under the former Regulation of Tax Reduction and Exemption Act repeals the gift tax exemption system on the farmland, etc. donated to him/her on or before January 1, 1999, it appears to be a transitional provision prepared to protect a person who satisfies the requirements for tax exemption on or before January 1, 199. If the purpose of the provision is to stipulate the requirements for farming children on the sole basis of the date of donation, it would be sufficient to delay the implementation of the gift tax exemption system on the farmland, etc. donated to his/her children under the legislative technology. However, Article 15 (2) of the Addenda of the former Restriction of Special Taxation Act provides for "farmland, etc. subject to tax exemption under the former Restriction of Tax Reduction and Exemption Act at the time of the enforcement of the Restriction of Special Taxation Act" as the requirement for tax exemption, Article 15 (2) of the former Enforcement Decree of the Restriction of Tax Reduction and Exemption Act provides for gift tax exemption by 1050 days before the enforcement date.

(2) In the case of tax exemption that cancels the tax liability established after the fact under the provisions of law, the taxpayer shall prove that the taxable object is the object of exemption (see Supreme Court Decision 68Nu161, Oct. 8, 1968). Meanwhile, the farming child under the former Regulation of Tax Reduction and Exemption Act refers to a person who manages and cultivates the farmland, etc. under his/her own responsibility without entrusting or lending it to another person, and even if he/she engages in the direct farming as long as he/she engages in another occupation concurrently, he/she shall be deemed as a farming child (see Supreme Court Decision 98Du9271, Sept. 22, 1998).

이 사건에 있어 1999. 1. 1. 당시에 원고가 위와 같은 영농자녀로서의 요건을 갖추고 있었는지 여부에 관하여 살피건대, 원고가 위 일자를 기준으로 소급하여 2년 간 계속하여 직접 영농에 종사하였다는 점에 부합하는 듯한 갑 제6호증의 1 내지 4 의 각 기재는 아래에서 보는 바와 같은 사정에 비추어 믿기 어렵고, 갑 제5, 7, 8, 13호증의 각 기재만으로는 이를 인정하기에 부족하며 그밖에 이를 인정할 증거가 없다. 오히려 을 제2호증의 1 내지 3의 각 기재에 변론 전체의 취지를 종합하면, 원고는 1997. 1. 1.부터 1997. 12. 31.까지는 인천광역시 소재 BB기계공업 주식회사에서 16,665,000원의 근로소득이, 1998. 9. 1.부터 1998. 12. 1.까지는 주식회사 ○○세라믹에서 3,710,000원의 근로소득이, 1998. 1. 1.부터 1998. 12. 1.까지는 위 BB기계공업 주식회사에서 2,013,000원의 근로소득이 각 발생하였던 사실을 인정할 수 있다. 위 인정사실에 의하면 원고는 1997. 1. 1.부터 1998. 12. 1.까지의 기간에는 BB기계공업 주식회사 내지 주식회사 ○○세라믹에서 근로소득을 얻고 있었는데, 위 위 BB기계공 업 주식회사와 이 사건 각 토지 사이의 거리, 발생한 근로소득 등에 비추어 볼 때, 설령 원고의 주장과 같이 원고가 위 기간 동안에도 틈틈이 이 사건 각 토지를 경작했다고 하더라도 이는 위 각 회사의 직원으로서의 업무에 전념하면서 농업을 간접적으로 경영하였던 것에 불과하다고 판단되므로, 1999. 1. 1.을 기준으로 소급하여 2년 이상 계속하여 직접 영농에 종사하고 있지 않았다고 봄이 상당하다.

Therefore, as of January 1, 199, the Plaintiff failed to meet the requirements for farming children under the former Regulation of Tax Reduction and Exemption Act and the Enforcement Decree of the same Act as of January 1, 199, the Defendant’s disposition of this case based on the premise that each of the land of this case does not fall under those eligible for exemption of gift tax under each of the above provisions 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 and the plaintiff's appeal is without merit, and it is so decided as per Disposition.