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(영문) 대법원 2008. 08. 21. 선고 2008두9126 판결
8년 자경농지에 해당하는지 여부[국승]
Title

Whether it falls under the category of self-farmland for 8 years

Summary

As a result of the field investigation, there is no evidence that it has been self-defensed for not less than eight years, and rather, it can not be recognized as farmland.

Related statutes

Article 69 of the Restriction of Special Taxation Act (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

Text

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

Reasons

All of the records of this case and the judgment of the court below and the grounds of appeal were examined, but it is clear that the assertion on the grounds of appeal by the appellant constitutes Article 4 of the Act on Special Cases Concerning the Procedure of Appeal and therefore, the appeal is dismissed pursuant to Article 5 of the above Act. It is so decided as per Disposition

[Seoul Administrative Court 2006Gudan10286, 2007. 21)

Text

1. The plaintiff's claim is dismissed.

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

Purport of claim

The Defendant’s disposition of imposition of KRW 83,064,020 on the Plaintiff on November 2006 shall be revoked.

Reasons

1. Circumstances of dispositions;

A. On 1960.03.03, 1960.05.03, ○○○○○○-dong 80 m2,126 m2,126 m2, 79 m2,168.06 m2, 845 m2, and 87 m2,157 m2,157 m2, which is the father of the Plaintiff. The Plaintiff acquired each of the above land to ○○○ on 17 March 17, 1971, and transferred each of the above land to ○○ on 03.07 March 2005, and the Plaintiff applied for reduction of capital gains tax under Article 69(1) of the Restriction of Special Taxation Act.

B. The Defendant, on November 2006, considered that the deceased or the Plaintiff did not meet the requirements for self-sufficiency for not less than the above eight years, imposed capital gains tax of 102,871,840 won on the Plaintiff for the year 2005 without applying the said reduction or exemption provisions. However, upon the decision of the Commissioner of the National Tax Service, “as a result of the Plaintiff’s request for examination, ○○○-dong 80 Do 2,126 m2,126 m2 shall be deemed as farmland for not less than eight years, and accordingly, the tax base and tax amount of capital gains tax shall be corrected.” Accordingly, on November 18, 2006, the amount of capital gains tax as originally charged was reduced to 83,064,020 won (hereinafter “the remaining part of the original disposition”).

[Grounds for Recognition] Unsatisfy, Gap 4, 7, Eul 1, 9

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The deceased acquired 00 00 m2, 79 m2, 79 m2, 845 m2, and 87 m2, 37 m2,157 m2 (hereinafter “the instant land”) from 1971.03 to 28 December 1972 and cultivated the instant land directly until around the time of death on 1989, while residing in the area where the instant land was located, except for the period during which the deceased temporarily transferred his resident registration to Seoul for his own study. Accordingly, the instant land falls under the reduction of or exemption from the capital gains tax under Article 69(1) of the Restriction of Special Taxation Act, and thus, the instant disposition that excluded the application of the said reduction or exemption provisions is unlawful.

(b) Related statutes;

○ Reduction or exemption of transfer income tax on self-Cultivating farmland Article 69 of the Restriction of Special Taxation Act

(1) With respect to the income accruing from the transfer of land which is subject to taxation of agricultural income tax (including those subject to non-taxation, reduction and exemption, and small-amount collection) as prescribed by the Presidential Decree, which is cultivated by the resident prescribed by the Presidential Decree residing in the seat of such land for not less than eight years (including the direct cultivation by omission of inside the boundary), the tax amount equivalent to 100/100 of the transfer income

Article 66 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329 of Feb. 9, 2006) (amended by Presidential Decree No. 19329 of Feb. 9,

(1) The term “resident prescribed by the Presidential Decree who resides in the seat of any farmland” in the main sentence of Article 69 (1) of the Act means a person who cultivates while residing in the area falling under any of the following subparagraphs for not less than eight years (including the relevant area at the time of commencement of cultivation, but comes not to fall thereunder due to a reorganization of administrative districts):

1. An area within 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.

(4) The term “land as prescribed by the Presidential Decree” in the main sentence of Article 69 (1) of the Act means the farmland cultivated by oneself for not less than 8 years from the time of its acquisition to the time of its transfer, excluding the farmland falling under any of the following subparagraphs. In this case, in calculating the period of farmland inherited, the period acquired by an ancestor and cultivated by the heir shall be deemed the period of farmland cultivated by the heir:

(5) The farmland subject to paragraph (4) shall be based on the farmland as of the date of transfer referred to in Article 162 of the Enforcement Decree of the Income Tax Act.

C. Determination

In light of Article 69(1) of the Restriction of Special Taxation Act and Article 66 of the former Enforcement Decree of the same Act, the term “○○○○○○○○○○○○○○○○○○○○○○○○○○○○○” means the land cultivated by the resident for at least eight years from the time of the acquisition of the deceased’s farmland, and as of the date of the transfer. If the transferor of the farmland acquired the farmland due to inheritance, the period of the decedent’s acquisition and cultivation is also considered as the period of cultivation. The deceased’s resident registration was 263,00 on March 25, 1971, on the premise that it was difficult for the resident to locate○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ to have been registered on the deceased’s 1st day after the acquisition of the land.

3. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case cannot be accepted, and it is dismissed.

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