Busan District Court 2012Guhap3188 ( December 21, 2012)

Cho High Court Decision 2012J1424 (Law No. 106.07)

It is difficult to regard the transferred land as being self-sufficient for not less than eight years.

In light of the fact that the transfer land has been managed by a certified judicial scrivener office after being employed as a public official during the period of farmland holding and retired, and that the workplace, residence and land are somewhat located or that the area of the land is broad, etc. in order to perform mixed farming work while serving as a public official or operating a certified judicial scrivener office, it is difficult to see that the transfer land has been self-employed for not less than eight years.

2013Nu55 Revocation of Disposition of Imposing capital gains tax

United Nations AAA

Head of North Busan District Tax Office

Busan District Court Decision 2012Guhap3188 Decided December 21, 2012

June 21, 2013

July 26, 2013

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's imposition of capital gains tax of KRW 000 (including additional tax) for the plaintiff on September 6, 2011 shall be revoked.

1. Details of the disposition;

가. 원고는 1984. 2. 4. 부산 강서구 000 답 1，230㎡， 1984. 12. 26. 같은 동 00000 전 1，382㎡에 관하여 각 자신 앞으로 소유권이전등기를 마쳤다가， 2010. 4. 12. 위 각 토지(이하 '이 사건 토지'라 한다)에 관하여 한국토지주택공사 앞으로 2010. 4. 2.자 공공용지의 협의취득을 원인으로 한 소유권이전등기를 마쳐 주었다.

B. On June 21, 2010, the Plaintiff filed an application for full exemption of capital gains tax on the ground that the Plaintiff’s preliminary return of the tax base for capital gains tax following the transfer of the instant land was filed with the Defendant, and that the Plaintiff constitutes “self-farmland for not less than eight years” under Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 10406, Dec. 27, 2010; hereinafter the same).

C. However, on September 6, 201, the Defendant, on the ground that the Plaintiff did not directly cultivate 1/2 or more of farming work with its own labor and did not meet the requirements for reduction or exemption of capital gains tax on self-employed farmland, and applied the "Regulations on Reduction or Exemption of Capital Gains Tax for Public Land, etc. (25% of the reduction or exemption rate)" under Article 77 of the former Restriction of Special Taxation Act, and corrected and notified the Plaintiff of KRW 000 (including additional tax of KRW 000 for failure to pay) of capital gains tax for the year 2010 (hereinafter "the instant disposition").

D. On November 25, 201, the Plaintiff dissatisfied with the instant disposition and filed an objection with the Commissioner of the Busan Regional Tax Office on November 25, 201, but was dismissed on December 20, 201, and filed an inquiry with the Tax Tribunal again on March 9, 2012, but was dismissed on June 7, 2012.

[Grounds for Recognition] The facts without dispute, Gap evidence 1 through 4, Eul evidence 1 and 2 (if any, including each number, and hereinafter the same shall apply), and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The assertion that direct cultivation has been conducted for not less than eight years

Since the Plaintiff cultivated not less than 1/2 of farming work in the above land for not less than 8 years from the time of acquiring the instant land to the time of transferring it by means of his own labor, it constitutes the full exemption from capital gains tax, and the Defendant’s disposition based on a different premise is unlawful.

2) Claim of violation of the principle of retroactive taxation prohibition

Article 66 (12) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21307 of Feb. 4, 2009, hereinafter referred to as the "former Enforcement Decree of the Restriction of Special Taxation Act"), which defines "direct farming", even if the plaintiff's cultivation does not fall under 1/2 or more of farming operations, includes not only the transferor's cultivation of water but also the case where he employs another person under his responsibility and account, so the plaintiff already meets the requirements of self-consumption for at least eight years prior to the establishment of the above provision. Nevertheless, the defendant was amended by Presidential Decree No. 21307 of Feb. 4, 2009, and the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21307 of Feb. 23, 2012, hereinafter referred to as the "former Enforcement Decree of the Restriction of Special Taxation Act"). Thus, it does not constitute a violation of Article 66 (16) of the former Enforcement Decree of the Restriction of Special Taxation Act.

3) Violation of the principle of clarification of taxation requirements

Article 59 of the Constitution stipulates that "the items and rates of taxation shall be determined by law," while the principle of no taxation without law is included in the principle of no taxation without law, and "the 1/2 of the farming work" provided by Article 66 (13) of the revised Enforcement Decree of the Restriction of Special Taxation Act is unclear in this concept, so it is invalid as it violates the principle of no taxation without law, and the disposition of this case is also unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the assertion that direct cultivation was conducted for at least eight years

A) Article 69(1) of the former Restriction of Special Taxation Act provides that "The tax amount equivalent to 100/100 of the transfer income tax shall be reduced or exempted for the income accruing from the transfer of land prescribed by the Presidential Decree among the land which is subject to agricultural income tax, and Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act provides that "Direct farming" means that "the residents are engaged in cultivating or growing crops or perennial plants on their own land at least 1/2 of the cultivation or perennial plants with their own labor, or cultivating or cultivating 1/2 or more of the cultivation with their own labor" in Article 69(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (see Article 69(1) of the former Enforcement Decree of the Restriction of Special Taxation Act, referring to the case where a farmer is constantly engaged in cultivating crops or growing perennial plants on his own land for at least eight years, or 2/100 of the cultivation with his own labor at least 3/100 of the newly amended Enforcement Decree of the Restriction of Special Taxation Act."

B) In light of the following facts or circumstances, as to whether the Plaintiff had cultivated directly for more than eight years, the evidence and evidence set forth in paragraph 1 above, and evidence set forth in paragraph 5, 13, 14, and 3 through 5, and the video set forth in the evidence set forth in paragraph 1 above, and the overall purport of the pleadings, and the testimony set forth in the evidence set forth in paragraph 6, 7, 9, 12, and 15 through 18 submitted by the Plaintiff, and the testimony set forth in the witness set forth in the first instance trial and the first instance trial witness set forth in the evidence set forth in paragraphs 1 and 2, and there is no other evidence to support this.

(1) The plaintiff served as court official from May 7, 1979 to July 1, 2001, and worked at the office of Busan District Court office located in Seo-gu Busan District Court, Busan for most of the most of the periods, and excluded from the closure period from July 23, 2001 ( August 27, 2002 - September 22, 2005) since the retirement of the court official, and operated the office of a certified judicial scrivener in Gangseo-gu, Busan and up to September 22, 2005, up to 20 million won each year (the plaintiff was operating the office of a certified judicial scrivener in 00 in Gangseo-gu, Busan and 0 million won each year (from April 7, 2004 to December 1, 2005).

(2) The Plaintiff’s above workplace and the Plaintiff’s residence in Busan Northern-gu, Middle-gu, Seo-gu, and Gangseo-gu, etc. are about 10-15 kmn, and the area of the instant land is about 2,612 m2 in total (=790 m2), and the Plaintiff also owns about 000-3 m2,319 m2,319 m2 and 3,600 m2,00 m2,000 m2,000 m2,000 m2,000 m2,000 m2, m2,000 m2, in addition to the instant land, and the Plaintiff is somewhat far away or broad in its area while working as a court official or a certified judicial scrivener.

(3) On May 31, 201, the Plaintiff: (a) leased agricultural equipment, such as dry field, from the land owners, to approximately KRW 000,000 of rent for dry field; (b) paid approximately KRW 000 per day to the land owners who introduced the land; and (c) paid approximately KRW 3-40,00 per day to the land owners who introduced the land, and KRW 3-40,00 per day by paying to the land owners who introduced and KRW 3-40,00 per day; and (d) harvest of agricultural chemicals.

C) Therefore, the Plaintiff’s assertion that the instant land was directly cultivated for not less than eight years is without merit.

2) Determination on the assertion of violation of the principle of retroactive taxation prohibition

A) The principle of retroactive taxation prohibition, one of the basic principles of tax-related Acts, refers to the principle that taxes are not imposed retroactively under new tax-related Acts with respect to the income, earnings, and assets, and activities or transactions in which taxes are established (Article 18(2) of the Framework Act on National Taxes).

In other cases where tax liability is established after the enactment or amendment of tax law, there is no room to apply this principle (see Supreme Court Decision 88Nu11957, Sept. 29, 198).

B) Article 66(12) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 66(13) of the same Enforcement Decree of the Restriction of Special Taxation Act), which is the same provision as that of this case, provides that "direct cultivation" shall be engaged in the cultivation of agricultural products or the growing of perennial plants on its own land at all times or in the cultivation or growing of perennial plants with their own labor," and the former Enforcement Decree of the Restriction of Special Taxation Act before the above provision is newly established does not separately stipulate the concept of "direct cultivation" which is one of the requirements for reduction or exemption of capital gains tax. Accordingly, the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19896, Oct. 21, 1994; Presidential Decree No. 9857, Oct. 21, 1994).

C) Therefore, the Plaintiff’s assertion on this part is without merit.

3) Determination on the assertion of violation of the principle of clarification of taxation requirements

A) Whether a taxpayer goes against the principle of clarity of taxation requirements is required to make a comprehensive judgment in accordance with the criteria, such as whether a taxpayer's act is expected to be subject to taxation because it falls under the relevant phrase, which is a taxation requirement, and whether the uncertainty of the relevant phrase is granting the possibility of applying the law in a arbitrary and discriminatory manner from the standpoint of an administrative agency, and whether a taxpayer can expect to choose more conclusive phrases technically from the legislative perspective (see Supreme Court Decision 2002Du1588, Sept. 23, 2004).

B) For the purpose of Article 6(13) of the Enforcement Decree of the Restriction of Special Taxation Act, the term "one half of the work of farming" in this case shall be clearly interpreted as meaning one half of the work amount when cultivating or cultivating agricultural products or perennial plants in the farmland in question, and its meaning may be predicted from the perspective of the general public, and otherwise, it shall be interpreted as one half of the work area, or one half of the work area (if the total work amount is converted into time based on the average work amount of a farmer, it may be interpreted as one half of that time) and arbitrary application by the tax authorities is not possible, and the above provisions do not violate the principle of clarification of the tax requirements.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed due to the lack of reason, and the judgment of the first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.