[1] Whether a land used to cultivate ornamental trees constitutes farmland under the Land Excess Profit Tax Act (affirmative)

[2] The case holding that a disposition of imposing and assessing gift tax exempted on the ground that a person who cultivated ornamental trees after donation of farmland was not engaged in farming under the Regulation of Tax Reduction and Exemption Act was unlawful

[1] Article 2 subparag. 6 and Article 5 of the former Cadastral Act (amended by Act No. 4273 of Dec. 31, 190) and Article 6 subparag. 1 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 13254 of Jan. 28, 191) stipulate that land mainly growing plants, such as grain, horticultural crops (excluding fruit trees), medicinal herbs, mulberry trees, mulberry trees, ornamental trees, and ornamental trees, without water site, shall be classified into "dypine." Meanwhile, according to the Korean Industrial Standards classification publicly notified by the Commissioner of the Statistics Korea, landscaping and related service business falls under the above above category of land (014.10) and thus, it constitutes an excessive acquisition of farmland, such as landscaping and related service business, and whether the above above above category of land falls under the category of land under Article 8 subparag. 2 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 13254 of Jan. 28, 1991).

[2] The case holding that if a person who received land, ornamental trees, and seedlings from his parents who had engaged in ornamental tree cultivation business on the land continues to pay farming expenses until January 16, 192, 192, which is the date on which the gift tax is imposed, and had another person do so, and the remaining land were used for ornamental tree cultivation and seed packing together with other land that he purchased or leased from the State, the gift tax was exempted, and then the gift tax was not directly engaged in farming on the land within eight years from the date of donation, and thus, the disposition of imposition and collection of gift tax and defense tax exempted by the tax authorities pursuant to each of Articles 67-8 and 67-6 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4021 of Dec. 26, 1988) was unlawful.

[1] Article 8(1)5 and 14(b) of the Land Excess Profit Tax Act; Article 12(1) and (2) of the Enforcement Decree of the Land Excess Profit Tax Act; Article 21(2) and (3) of the Enforcement Decree of the Land Excess Profit Tax Act; Article 18(2)2 of the Enforcement Rule of the Land Excess Profit Tax Act / [2] Articles 67-6(3) and 67-8(2) of the former Regulation of Tax Reduction and Exemption Act (Amended by Act No. 4021, Dec. 26, 1988); Article 11-3(1)1 of the former Inheritance Tax Act (Amended by Act No. 4022, Dec. 26, 198)

Plaintiff 1 and one other (Attorney Cho Jong-soo, Counsel for the plaintiff-appellant)

Director of the Gangwon District Tax Office and one other

Seoul High Court Decision 92Gu37712 delivered on July 11, 1996

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are also examined.

1. Regarding ground of appeal No. 1

Article 8(1) of the Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994; hereinafter the same) provides for idle land, etc. which is owned by an individual and is subject to taxation of land excess profit tax. The main sentence of subparagraph 14(b) and Article 21(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994; hereinafter the same shall apply) state one of the "land prescribed by Presidential Decree" under Article 8(1)14(b) of the Act.

In addition, Article 2 subparag. 6 and Article 5 of the former Cadastral Act (amended by Act No. 4273 of Dec. 31, 1990) and Article 6 subparag. 1 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 13254 of Jan. 28, 191) provide that the land mainly growing plants, such as grain, horticultural crops (excluding fruit trees), medicinal herbs, mulberry trees, mulberry trees, paper seedlings, ornamental trees, and ornamental trees, without water site, shall be classified into "drying". Meanwhile, according to the Korean Industrial Standards Classification publicly notified by the Commissioner of the Statistics Korea, landscaping crop planting business belongs to landscaping and related service business (0140), and that landscaping and related service business belongs to landscaping and related service business, if not engaged in production activities of crops, it refers to industrial activities, such as planting planting plants, such as building site, road, garden trees, park ground, etc., under a contract and fee with business entities or individuals other than agriculture.

According to the above laws and regulations, land used for primarily cultivating crops such as ornamental trees is not a land for planting landscape crops under Article 8 (1) 14 (b) of the Land Tax Act and Article 12 (2) of the Enforcement Decree of the Land Tax Act, but a land for planting landscape crops under Article 8 (1) 14 (b) of the Land Tax Act and Article 12 (2) of the Enforcement Decree of the Land Tax Act. Thus, whether such land constitutes idle land, etc. subject to a soil tax should be determined in accordance with Article 8 (1) 5 of the Land Tax Act, which provides standards for idle land, etc. in relation to farmland.

Therefore, the decision of the court below that the land, among each land listed in the separate sheet Nos. 1 and 2, cultivated ornamental trees or being used as a seed package, constitutes a farmland which is not a land for landscape crop planting business, not a land for landscape planting business, is just and there is no error of law by misapprehending the legal principles as to the scope of idle land, etc. which is subject to soil tax, as discussed in the judgment of the court below. There is no reason to discuss.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment of the court below, the plaintiff 1 was born on May 18, 1953 between the plaintiff 2 and the non-party 1, his husband, and the plaintiff 2, who had been engaged in ornamental tree cultivation business, purchased part of the neighboring land from around 1975 to Do, and purchased ornamental tree farming business at her own expense and responsibility, and did so on 1988, the court below did not err by misapprehending the legal principles on the gift tax imposition date of this case, since the plaintiff 1 received a donation of ornamental trees and seedlings on the attached Tables 3 and 4 at 192, which were the date of disposition on January 16, 192, which was the date of disposition on imposition of the gift tax of this case, and it did not err by misapprehending the legal principles as to the land which was exempted from the imposition of the gift tax of this case by the plaintiff 2 and the non-party 1, who had been exempted from the imposition of the gift tax of this case, and by comparing the remaining land with the plaintiff 16th of this case.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)