Whether the requirements for reduction or exemption of farming children are satisfied

If it is nothing more than a intermittent management of agriculture with focus on other occupations, it cannot be viewed as a self-employed farmer, and it does not meet the requirements for reduction and exemption of farming children.

Article 58 of the Regulation of Tax Reduction and Exemption Act

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 defendant shall revoke the disposition of imposition of KRW 190,106,040 against the plaintiff on 06.06.

1. Details of the disposition;

This Court’s reasoning is as follows: (a) the first instance court’s decision is the same as the grounds for rejection of the result of the examination of the Plaintiff’s principal, which corresponds to the Plaintiff’s assertion; and (b) thus, it is cited pursuant to Article 8(2) of the Administrative Litigation Act

Therefore, the judgment of the first instance court is justifiable, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Insuwon District Court 2006Guhap10901, 2007. 27)]

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of gift tax of KRW 190,106,040 against the Plaintiff on 06.06 is revoked.

1. Details of the disposition;

A. On November 05, 2004, the Plaintiff donated the sum of 5,469 square meters to ○○○○○-dong, ○○○○○-dong, other than ○10,00, to the Defendant to be exempt from gift tax on the aggregate of 4,654 square meters of the size of the land outside the same ○○○○-dong, which is farmland around that time.

B. On October 06, 2006, the Defendant decided and notified the Plaintiff of the gift tax amount of KRW 190,106,040, excluding KRW 31,220,99, which the Plaintiff already reported and paid, on the ground that the Plaintiff does not constitute a farming child exempt from gift tax under Article 15(2) of the Addenda to the Restriction of Special Taxation Act.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence Nos. 1, Eul evidence Nos. 1, 2, 4, and 5, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the parties' assertion

(1) Defendant

Since the Plaintiff had been residing in ○○ continuously from October 15, 1983 to December 2004, the land of this case was transferred to ○○○ City where the land was located. Thus, it cannot be deemed that the Plaintiff continued to reside in the Si/Gun/Gu where the land of this case, which is the object of donation, is located or adjacent thereto, and it is merely an indirect operation of agriculture, and it cannot be deemed that the Plaintiff had engaged directly in farming for two or more years retroactively from the date of donation. Therefore, the Defendant’s disposition of this case is legitimate since the exemption of gift tax under Article 57(2) and each subparagraph of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 15976, Dec. 31, 198) is not a farming child.

(2) Plaintiff

(A) The Plaintiff resided within 20km from the land of this case and has been directly engaged in farming for more than two consecutive years retroactively from the date of donation. Thus, it constitutes one farming child exempt from the gift tax under Articles 57(2), 57(1), and 55(1) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 14869 of Dec. 30, 1995). The Plaintiff is still exempted from gift tax by the transitional provisions of Article 10(3) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 15976 of Dec. 31, 1998).

(B) Until around October 1, 1989, the land of this case belongs to ○○○-Gun, adjacent to ○○○-Gun, where the Plaintiff had resided in the administrative district due to the administrative district around 1989. Since ○○-Gun, around October 1, 1989, ○○-si became ineligible for the adjacent Si/Gun/Gu. In light of the purport of Article 66(1) of the Enforcement Decree of the Restriction of Special Taxation Act, the Plaintiff should be deemed to have resided in ○○-Gun, where the land of this case was located and ○○-Gun, adjacent to ○○○-Gun, where the land of this case was located.

(C) From around 1974, the Plaintiff has continuously cultivated the instant land by Do and directly cultivating the instant land. Even after having been employed at a post office, the Plaintiff has continuously cultivated the said land by using a sun-day system.

(b) Related statutes;

(1) The Regulation of Tax Reduction and Exemption Act (amended by Act No. 4981 of Dec. 6, 1995)

(1) Where a farmer determined by Presidential Decree donates farmland, etc. falling under any subparagraph of Article 56 (1) to his/her lineal descendant who is engaged in the farming prescribed by Presidential Decree (hereafter referred to as a "farmer 1" in this Article), the gift tax on the value of the relevant farmland, etc. shall be exempted.

(1) The Regulation of Tax Reduction and Exemption Act (amended by Act No. 5584, Dec. 28, 1998)

Article 58 (Exemption from Gift Tax on Farmland, etc. Given to Farming Offsprings) (1) Where a self-employed farmer prescribed by Presidential Decree (hereafter referred to as "self-employed farmer" in this Article) donates farmland, grassland, or forest land (hereafter referred to as "agricultural child" in this Article) falling under any of the following subparagraphs, the gift tax on the value of the relevant farmland, etc. shall be exempted (hereafter referred to as

(1) Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 14869 of Dec. 30, 1995)

Article 55 (Exemption from Transfer Income Tax on Farmland, etc. Transferred to Self-employed Farmers) (1) The term "self-employed farmer prescribed by Presidential Decree" in the main sentence of Article 56 (1) of the Act means a person who meets all of the following requirements (in the case of a farming planner prescribed by Ordinance of the Prime Minister, a person who meets

1. The farmland concerned, grassland, or forest land (hereinafter referred to as "farmland, etc.") shall be residing in the Si/Gu (referring to the Special Metropolitan City and Metropolitan Cities; hereinafter the same shall apply in this Article)/Eup/Myeon, or in the Si/Gu/Eup/Myeon adjacent thereto, or in the neighboring Si/Gu/Eup/Myeon, or shall reside in the area within the distance provided for in Article 23 (2) 2 of the Enforcement Decree of the Farmland Lease Management Act from the relevant farmland, etc.;

2. A person who is 18 years of age or older as of the date of acquisition of the relevant farmland, etc., and is engaged directly in farming for two or more years retroactively from the date of acquisition.

(1) For the purpose of Article 58 (1) of the Act, the term "self-employed farmer as prescribed by the Presidential Decree" means a person who satisfies all of the following requirements:

1. It is required to fall under Article 55 (1) 1;

2. The term “one child engaged in farming as prescribed by the Presidential Decree” in Article 58 (1) of the Act means a person falling under Article 55 (1), from among the lineal descendants of a person meeting the requirements of paragraph (1), who acquires farmland, etc. by being exempted from the gift tax pursuant to the provisions of this Article for the first time after being exempted from the gift tax pursuant to the provisions of this Article;

(1) Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 15976 of Dec. 31, 1998)

Article 57 (Exemption from Gift Tax on Farmland, etc. Given to Farming Children) (1) The term "self-employed farmer prescribed by Presidential Decree" in the main sentence of Article 58 (1) of the Act means a person meeting all of the following requirements:

1. The person shall reside in the Si/Gun/Gu (referring to an autonomous Gu; hereafter the same shall apply in this Article) in which the relevant farmland, etc. is located or the Si/Gun/Gu adjacent thereto;

2. The term “the lineal descendants engaged in farming as prescribed by the Presidential Decree” in the main sentence of Article 58 (1) of the Act means the lineal descendants of the persons meeting the requirements under paragraph (1) who are 18 years of age or older as of the date of donation of the relevant farmland, etc. and who meet all the requirements under each subparagraph of paragraph (1): Provided, That in the case of the farming planners as prescribed by the Ordinance of the Ministry of Finance and Economy, it means the person meeting the requirements under paragraph (1)

Addenda (No. 14869, Dec. 30, 1995)

(3) If a resident who falls under Article 54 (2) and a self-employed farmer who falls under Article 55 (1) at the time this Decree enters into force, fails to meet the requirements pursuant to the amended provisions of Article 55 (1) respectively, he/she shall comply with the previous provisions of Article 54, notwithstanding the provisions of the same Article.

(1) This Decree shall enter into force on the date of its promulgation.

/ The Restriction of Special Taxation Act (amended by Act No. 5584, Dec. 28, 1998)

No. 5584, Dec. 28, 1998

Article 9 (General Transitional Measures) (2) The previous provisions shall apply to the national taxes and local taxes which have been or are to be reduced or exempted under the previous provisions before the enforcement date of this Act.

(3) Any statutes citing the previous provisions of the Regulation of Tax Reduction and Exemption Act and the provisions thereof at the time this Act enters into force shall be deemed to have cited this Act and the corresponding provisions of this Act.

(2) With respect to the farmland, etc. subject to exemption from the gift tax as provided in Article 58 (1) of the previous Regulation of Tax Reduction and Exemption Act at the time this Act enters into force, which is donated by a self-employed farmer to his children until December 31, 200, the gift tax shall be exempted pursuant to Article 58 (2) through (5) of the previous Regulation of Tax Reduction and Exemption Act.

In the Restriction of Special Taxation Act (amended by Act No. 7849 of Dec. 12, 2006)

No. 5584, Dec. 28, 1998

Article 15 (Transitional Measures concerning Exemption of Gift Tax on Farmland, etc. Given to Farming Children) (2) With respect to farmland, etc. subject to exemption of gift tax pursuant to Article 58 (1) of the previous Regulation of Tax Reduction and Exemption Act at the time this Act enters into force, which is donated to farming children by a self-employed farmer up to December 31, 2006, the gift tax shall be exempted pursuant to Article 58 (2) through (5) of the previous Regulation of

【Enforcement Decree of the Restriction of Special Taxation

Article 66 (Reduction or Exemption of Transfer Income Tax on Self-Cultivating Farmland) (1) The term “resident prescribed by the Presidential Decree who resides in the seat of farmland” in the main sentence of Article 69 (1) of the Act means a person who cultivates while living in the area (including the area corresponding to the relevant area at the time of commencement of cultivation, but does not fall under it due to a reorganization of administrative district) falling under any of the following subparagraphs for 8 years or more [3 years where the farmland subject to the payment of management transfer subsidies under paragraph (3) is transferred to the Korea Rural Community and Agricultural Corporation under the Korea Rural Community and Agricultural Corporation and Farmland Management Fund Act (hereafter referred to as the “Korea Rural Community and

1. An area in a Si/Gun/Gu (referring to an autonomous Gu; hereafter the same shall apply in this paragraph) where farmland is located;

2. An area within a Si/Gun/Gu adjacent to an area referred to in subparagraph 1.

m. Enforcement Decree of the Farmland Lease Management Act

Article 23 (Confirmation of Sale and Purchase of Farmland) (2) When a farmer requests the confirmation of sale and purchase of farmland to purchase farmland for the purpose of agricultural management, two members of the Committee under paragraph (1) shall investigate whether the farmland for which the confirmation is requested meet the requirements classified in the following subparagraphs and whether the farmland meets the requirements for the issuance of certificate of sale and purchase of farmland as prescribed by Ordinance of the Ministry of Agriculture

2. Farmland located outside the jurisdiction of a Si/Gu/Eup/Myeon residing and located within a distance of 20 kilometers from the place of residence.

C. Determination

(1) If there is no express measure to amend or delete the transitional provision of the Addenda to the previous Act at the time of the amendment, the transitional provision of the Addenda does not become null and void as a matter of course, even though there is no express measure to revise or delete the transitional provision of the previous Act, but the transitional provision of the Addenda to the previous Act shall be deemed null and void, since the amendment is the same as the repeal of the previous Act and the enactment of a new Act in the case of a specialized amendment, and therefore, the transitional provision of the previous Act shall be deemed null and void, barring any special circumstance (see Supreme Court Decision 2001Du1168, Jul. 26, 200

Article 58 (1) of the former Regulation on Tax Reduction and Exemption (amended by Act No. 4981 of Dec. 06, 1995) provides that if a farmer, who is self-employed, prescribed by the Presidential Decree, donates farmland, etc. to one of the children prescribed by the Presidential Decree, gift tax shall be exempted. Article 55 (1) 1 of the former Enforcement Decree of the Regulation on Tax Reduction and Exemption (amended by the Presidential Decree No. 14869 of Dec. 30, 1995) of the former Enforcement Decree of the Regulation on Tax Reduction and Exemption (amended by the Presidential Decree No. 14869 of Dec. 30, 1995) provides that one of the requirements of a self-employed farmer prescribed by the Presidential Decree, who resides in a region within 20 km of Article 23 (2) 2 of the Enforcement Decree of the Farmland Lease Management Act (hereinafter referred to as "the latter Regulation on Tax Reduction and Exemption") has been amended by Presidential Decree No. 14869, Dec. 30, 1995>

As such, with respect to farmland donated after January 01, 199, when the Special Tax Treatment Control Act and its Enforcement Decree came into force, the provisions on the exemption of taxes became null and void due to the above revision, and furthermore, the previous provisions do not provide for the purport that taxes shall be specially exempted within a certain period even in cases where the previous provisions meet future taxation requirements (see, e.g., Supreme Court Decision 2003Du13069, Oct. 11, 2005). Therefore, the plaintiff's assertion that the exemption of taxes still remains valid is without merit.

(2) In order to be exempted from the gift tax pursuant to Article 58(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 5584 of Dec. 28, 1998) to be exempted from the gift tax pursuant to Article 58(1) of the same Act, a farming child satisfying all the requirements of a self-employed farmer shall be donated with farmland. Here, a self-employed farmer shall be deemed as a person against each subparagraph of Article 57(1) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 15976 of Dec. 31, 1998) (amended by Presidential Decree No. 15976 of Dec. 1, 198), who resides in Si/Gun/Gu, such as farmland, shall be over 18 years of age as of the date of acquisition of the pertinent farmland, etc., and even if a person engaged in farming continuously for more than 2 years retroactively from the date of donation is deemed as a self-employed farmer.

In full view of evidence No. 1, evidence No. 2-1 through 3, evidence No. 3, evidence No. 4, evidence No. 3, evidence No. 3, and evidence No. 3, and part of the testimony by witness Kim ○○, the Plaintiff’s attached Kim ○, including the land in this case, has cultivated rice, vegetables, etc. on his own farmland since before 1974, and has been recorded on the farmland including the land in this case as a member of the farmland ledger issued by the Plaintiff, the Plaintiff’s attached Kim ○, as a member of the household in the farmland ledger issued by the ○○ ○○ ○ ○○ ○ ○ ○-○ ○ ○ ○, since the Plaintiff moved into the ○○ ○ ○ ○ ○○ ○ ,00 on April 15, 1983, the Plaintiff continued to work as a member of the house at the ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ .

According to the above facts of recognition, it is difficult to view that ○○ post office started residing at ○ on April 15, 1983 or that ○○ office started working as a house leader on April 01, 1989, and it directly cultivated the farmland located at ○○○○ City, even after starting working as a house leader, it can be viewed that ○○ office directly cultivated the farmland located at ○○○○ City, and in particular, it is more so doing. Accordingly, this part of the Plaintiff’s assertion is without merit.

(3) Although the land of this case was originally located in ○○○○○○○ ○○○ ○○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ , there is no dispute between the parties. As such, the Plaintiff asserted that, while working as a house owner at a post office, the Plaintiff directly cultivated the land of this case by taking advantage of the form of work on a day-day basis. However, even if the time when the Plaintiff started to serve as a day-day at the post office due to the reorganization of administrative district, even if the time when the Plaintiff was residing in an area that was not adjacent to the location of the land of this case, by applying Article 6(1) of the Enforcement Decree of the Restriction of Special Taxation Act to the effect that the Plaintiff ought

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.