Daejeon High Court 2012Nu971 (2012.06)

It can not be said that the enforcement decree provision stipulating the resident registration requirement among the requirements for living land for non-business use is invalid beyond the delegation scope.

It can not be said that the meaning of ‘resident' prescribed by the mother law is embodied and clarified in consideration of the purpose of legislation that focuses on capital gains tax on land for non-business use, and it is not a provision of invalidation beyond the scope of delegation.

2012du2294 Revocation of disposition of revocation of capital gains tax imposition

The AAA

The Director of the National Tax Service

Daejeon High Court Decision 2012Nu971 Decided September 6, 2012

February 28, 2013

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

We examine the grounds of appeal.

1. Article 104 (1) 8 and Article 104-3 (1) 1 (a) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same) provides that capital gains tax shall be imposed on 60/100 of the tax base of capital gains by deeming that the owner of farmland does not reside in the area or does not cultivate his/her farmland for non-business purpose under the conditions as prescribed by the Presidential Decree. Article 168-8 (2) of the Enforcement Decree of the Income Tax Act provides that "The main sentence of Article 104-3 (1) 1 (a) of the Income Tax Act is that the owner of farmland does not reside in the area or does not cultivate his/her farmland for non-business purpose" as the same Si/Gun/Gu as the location of farmland and the adjacent Si/Gun/Gu, or that the person who actually resides in the area within 20 kilometers in a straight line from the farmland to the extent of his/her own farmland for non-business purpose or for non-business purpose.

2. Nevertheless, the lower court determined that the provision of the Enforcement Decree of the above Act, which stipulates the requirements for farmland excluded from the land for non-business purposes, as the resident registration has been made in the area where the farmland was located, was invalid beyond the scope of delegation under the former Income Tax Act. On this premise, the lower court determined that the Plaintiff’s land of this case does not constitute non-business land. In so doing, it erred by misapprehending

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.