Cho High 208 Mine3483 ( December 31, 2008)

The meaning of "area within 20 km of direct election" defined in the reduction or exemption of the transfer tax for self-arable farmland;

An area within 20 km in a straight line means an area where the distance from the farmland to the boundary of the Si/Gun/Gu in which the owner resides does not exceed 20 km;

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

Article 69 (Abatement or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

Article 66 (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant revoked the imposition disposition of capital gains tax of KRW 945,490 against the Plaintiff on August 10, 2008.

1. Details of the disposition;

A. On March 9, 197, the Plaintiff sold to the Korea Rural Community & Agricultural Corporation on April 10, 2008 and completed the registration of ownership transfer in the name of the Korea Rural Community & Agricultural Corporation on April 11, 2008, the Plaintiff completed the registration of ownership transfer in the name of the Korea Rural Community & Agricultural Corporation (hereinafter “the transfer of this case”).

B. The Plaintiff filed a report on the reduction or exemption of capital gains tax pursuant to Article 69(1) of the Restriction of Special Taxation Act (hereinafter referred to as the “Act”) and Article 66(1)3 of the Enforcement Decree of the Act on the Grounds that the instant land, which is farmland, was self-defluent for not less

C. However, on August 10, 2008, the Defendant issued a disposition imposing capital gains tax of KRW 945,490 on the Plaintiff for the reason that the instant land does not constitute “farmland within 20km in straight line from the Plaintiff’s residence” under Article 66(1)3 of the Enforcement Decree of the Act (hereinafter “instant disposition”).

(d)The plaintiff filed a tax appeal on the grounds of objection, but the Tax Tribunal dismissed the plaintiff's appeal on December 31, 2008.

[Ground for Recognition: Facts without dispute, Gap 3, 4 evidence, Eul 1 and 2 evidence, the purport of the whole pleadings]

2. Whether the instant disposition is lawful

(a)a summary of the intent of the Plaintiff;

Article 69(1) of the Act and Article 66(1)3 of the Enforcement Decree of the Act provide that capital gains tax shall be reduced or exempted for land directly cultivated by residing in an area within 20 km from the farmland concerned for at least eight years, which is located within a 20 km radius from the farmland concerned, and "area within a 20 km radius" refers to an area within 20 km from the boundary of a Si/Gun/Gu where the owner, other than the distance from the farmland concerned to the address where the owner

원고는 1993년경부터 이 사건 양도 당시까지 전주시 완산구 ○○동1가 705-5 ★★아파트 107동 1102호(이하 '원고 주소지'라 한다)에서 거주하며 이 사건 토지를 직접 경작하여 왔고, 이 사건 토지에서 원고 주소지가 속한 전주시의 경계선까지의 거리는 17.09km로서 20km 이내에 해당하므로, 이 사건 양도 당시 원고는 법 시행령 제66조 제1항 제3호의 양도소득세 면제요건을 모두 갖추었음에도 이에 해당하지 않는다고 판단한 이 사건 처분은 위법하다.

(b) relevant statutes;

It shall be as shown in the attached Form.

C. Determination

(1) The key issue of this case is whether the “within 20km from the farmland concerned” under Article 66(1)3 of the Enforcement Decree of the Act refers to the distance from the farmland concerned to the domicile of the owner, or whether it refers to the distance from the farmland to the boundary of the Si/Gun/Gu where the owner resides.

Before Article 66(1) of the Enforcement Decree of the Act was amended by Presidential Decree No. 20620, Feb. 22, 2008, farmland owner has resided in a Si/Gun/Gu where farmland is located, in a Si/Gun/Gu where farmland is located, or in a Si/Gun/Gu adjacent to the area under subparagraph 1 of subparagraph 1, and became subject to reduction or exemption of capital gains tax as one of his/her own farmland only if he/she cultivated the farmland. This provision was amended by Presidential Decree No. 20620, Feb. 22, 2008, and became subject to reduction or exemption of capital gains tax even if he/she cultivated the farmland by residing in a “area within 20 km in a straight line from the farmland.”

(2) The purport of Article 66 (1) 3 of the Enforcement Decree of the Act is that, even if farmland is not cultivated within the area of a Si/Gun/Gu where the farmland is located or within a Si/Gun/Gu adjacent thereto, it seems to be to eliminate unreasonable results that the capital gains tax is not reduced or exempted; (3) If the farmland is cultivated within 20 km in a straight line from the farmland to the 20 km located within the Si/Gun/Gu, it is reasonable to view that the owner of the farmland resides within the 20 km radius from the 20 km of the Enforcement Decree of the Act to the 20 km of the Si/Gun/Gu, in light of the fact that the farmland is located within the 20 km of the 20 km of the Si/Gun/Gu residing within the 20 km of the 20 km of the Si/Gun/Gu, it is difficult for the owner of the farmland to use the 20 km area within the 20 km of the Si/Gun/Gu.

(2) As to the instant case, there is no dispute between the parties that the distance from the instant land to the Plaintiff’s residence exceeds 20 km, and thus, the instant transfer does not meet the requirements for exemption from capital gains tax under Article 66(1)3 of the Enforcement Decree of the Act. Therefore, the instant disposition imposing capital gains tax of KRW 945,490 on the Plaintiff for the year 2008 is lawful, and the Plaintiff’s assertion based on a color different interpretation as to Article 66(1)3 of the Enforcement Decree of the Act is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.