Seocho 201J 2535 (No. 22, 2011)

There is no evidence to prove the fact of self-defense for at least eight years;

In light of the fact that most farmland holding periods were operated by a veterinary hospital or a company, and the amount of business income and earned income is considerable, and the scale of land owned by the transferred farmland including the transferred farmland is considerable, it is insufficient to deem that the transferred farmland has been cultivated directly for not less than eight years, and there

Article 69 of the Restriction of Special Taxation Act

2011Gudan27646 Revocation of Disposition of Imposing capital gains tax

XX

Head of Eastern Tax Office

June 27, 2012

July 25, 2012

1. The plaintiff's claim is dismissed.

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

The defendant shall revoke the disposition of imposition of capital gains tax of KRW 000 against the plaintiff on January 3, 2011.

1. Details of disposition;

A. On March 27, 1986, the Plaintiff acquired three lots of land 2,880 square meters (hereinafter “the instant farmland”) with a total of 66 square meters prior to 000 square meters prior to 00-1,739 square meters prior to the same Ri on April 27, 1987, the Plaintiff transferred the instant farmland to the State (the competent authority: the Ministry of Land, Transport and Maritime Affairs) on February 9, 2010, on the ground of road expropriation. The Plaintiff, upon filing a report of capital gains tax, deemed 00 won to be the one prior to the amendment by Act No. 1068, Mar. 12, 2010; hereinafter the same shall apply) and to the Plaintiff who did not apply the capital gains tax reduction or exemption for 00 won or more due to road expropriation.

D. The Plaintiff was subject to the procedure of the previous trial (e.g., filing an objection and filing a tax appeal).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

"(1)" (2) The Plaintiff received a decision of reduction or exemption of capital gains tax on the land adjacent to the land purchased at a time similar to the farmland of this case on the ground that it is self-farmland in 198, and received a decision of reduction or exemption of capital gains tax on the ground that it is farmland owned by the Plaintiff’s motherA, which is adjacent to the farmland of this case, on the ground that the Defendant expressed a public opinion, and the Plaintiff filed an application for reduction or exemption of capital gains tax on the farmland of this case with trust. However, since the Defendant rendered the instant disposition imposing capital gains tax on the Plaintiff by imposing capital gains tax on the Plaintiff, which is different from his previous opinion, the instant disposition is unlawful as it is against the principle of good faith.

B. (1) Judgment on the plaintiff's claim

The main sentence of Article 69 (1) of the Restriction of Special Taxation Act provides that "the tax amount equivalent to 10/100 of the transfer income tax shall be reduced or exempted for the income accruing from the transfer of the land prescribed by the Presidential Decree among the land which is subject to the taxation of agricultural income tax, and Article 66 (13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010; hereinafter the same shall apply) (amended by Presidential Decree No. 19329, Feb. 9, 2006; hereinafter referred to as "new provision") provides that "the direct cultivation of the land by a resident who resides in the seat of the farmland for eight or more years is the cultivation of the crops or perennial plants on his own land, or the cultivation of the crops or perennial plants by a farmer with his own labor for two or more years, or the cultivation of the crops or perennial plants by a farmer under Article 26 (13) of the former Enforcement Decree of the Restriction of Special Taxation Act is the same."

As above, Article 69(1) of the former Restriction of Special Taxation Act delegates a specific scope to Presidential Decree by declaring the land directly cultivated for at least eight years as the object of exemption from capital gains tax. Article 66(4) and Article 66(4) of the Enforcement Decree of the same Act provides for the object excluded from the farmland cultivated by himself/herself for at least eight years, and Article 2 subparag. 5 of the Farmland Act provides for the purpose of "direct cultivation" in unification with the self-defense provision under Article 2 subparag. 5 of the same Act. Thus, the new provision does not have any ground for delegation or it does not have any invalid provision because it exceeds the limit of delegated legislation (see Supreme Court Decision 2010Du8423, Sept. 30, 201

As such, a new provision that cannot be seen as an invalid provision provides clear meaning of direct cultivation. To interpret that it includes a case in which a resident makes a family member living or living together with the same household cultivates, it cannot be allowed to exceed the grammatic interpretation range, and the fact of self-cultivation of farmland is proven by the claimant.

In light of the fact that the Plaintiff, a veterinarian, almost 20 years of possession of the farmland in this case, operated with a veterinary hospital, O Textiles, Y, △△△ corporation, etc., Y, △△△, etc., the business income and wage and salary income amount are considerable, and the Plaintiff’s size of the land to be owned, including the farmland in this case, reaches 23,00 square meters in size (Evidence No. 2, 3, 2, 2, 2), Gap’s evidence Nos. 4 through 16, and witness ParkB’s testimony only for eight years or more from the farmland in this case, it is insufficient to deem that the Plaintiff was directly cultivated, namely, cultivating crops or growing perennial plants for eight years or more from the farmland in this case, or cultivated or cultivated with his own labor for 1/2 or more of farming work. There is no other evidence to acknowledge otherwise.

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

C. Judgment as to the plaintiff's claim (2)

The Restriction of Special Taxation Act stipulates not only special cases of tax reduction and exemption, but also special cases of tax exemption and special cases, special cases of tax exemption and restriction of special cases (Article 1). The expectation and trust of reduction and exemption is not originally permanent, but also newly established, provisionally, temporarily, and temporarily, according to the amendment of the former Restriction of Special Taxation Act. As seen earlier, the new provision has been enforced on February 9, 2006, and has been applied until now. Even if the Plaintiff trusted that the farmland of this case is classified as self-employed farmland according to the interpretation of the former Act before the amendment, the concept and classification of self-employed farmland of this case is related to the concept and classification of self-employed farmland of this case, even if the Plaintiff trusted that it would be classified as self-employed farmland of this case according to the interpretation of the former Act before the amendment, it cannot be deemed that the Plaintiff’s new provision on the reduction and exemption of capital gains tax was more protected by comparing and balancing the request of public interest in the application of the newly amended Restriction of Special Taxation Act, and thus, it cannot be deemed that the Plaintiff’s transfer income tax reduction and exemption cannot be imposed on the Plaintiff’s.

Therefore, this part of the Plaintiff’s assertion is without merit, and the disposition of this case on which the Defendant imposed capital gains tax by excluding the capital gains tax reduction provisions on the farmland in this case is legitimate.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.